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THE  LIBRARY 

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SUMMARY 

OF 

THE   LAW   OF   RAILWAYS: 

WITH 

AN    APPENDIX, 

INCLUDING  THE 

THREE  GENERAL  CONSOLIDATION  ACTS 

WITH   ANALYSIS   AND   NOTES  ; 

REPORTS  OF  PROCEEDINGS  BEFORE  COMMITTEES  ON 
RAILWAY  BILLS, 

^arliamentatg  practice, 

FORMS,  &c. 


BY 

FREDERICK   WALFORD,   ESa. 

OF  THE   INNER   TEMPLE,   BARRISTER    AT    LAW. 

SeconD  ISUitfon. 


BOSTON : 
CHARLES  C.   LITTLE   AND  JAMES  BROWN. 

LONDON  : 

THOMAS    BLENKARN. 

18  50. 


^ 


PREFACE 


SECOND   EDITION. 


The  general  order  and  arrangement  of  the  Second 
Edition  of  this  Work  is  the  same  as  that  of  the 
first ;  so  far,  that  is  to  say,  as  regards  the  body  of 
the  Work,  the  principal  difference  between  the 
two  Editions  consists  in  the  necessary  enlargement 
which  some  portions  of  the  text  have  undergone, 
in  order  to  embrace  more  fully  the  many  novel  ques- 
tions which  the  rapid  growth  of  Railway  Enterprise 
during  the  preceding  year  has  produced.  The  chap- 
ter, in  particular,  which  treats  of  the  rights  and 
liabilities  of  the  parties  concerned  in  Companies  for 
the  formation  of  Railways,  such  as  allottees  of 
shares,  provisional  directors,  and  the  like,  has  been 
enlarged  to  the  full  extent  deemed  consistent  with 
the  scope  and  limits  of  the  work.  Abstracts,  more- 
over, of  many  of  the  most  important  cases  have  been 
introduced  into  the  notes,  by  way  of  illustrating  the 
positions  laid  down  in  the  text. 

The  main  additions,  however,  are  those  which 
have  been  made  to  the  Appendix.  Reports  have 
been  given  of  the  Proceedings  of  two  of  the  most 

important    Committees    of   last    Session,    that    on 
a2 


^JA  QO.'^-Q 


748f: 


IV  PREFACE. 

Group  (X)  of  Railways,  (The  London  and  York, 
&c.),  and  that  on  Group  (A),  (The  North  Kent, 
South-Eastern,  &c.)  These  reports,  it  may  be 
proper  to  remark,  are  not  intended  to  give  a  de- 
tailed history  of  each  day's  proceedings,  but  to  ex- 
plain the  general  nature  of  the  proceedings  before 
Committees,  and  the  principal  points  of  parlia- 
mentary law  or  practice,  which  are  likely  to  arise 
in  the  course  of  them.  In  addition  to  this,  there 
has  been  introduced  into  the  Appendix  a  Summary 
of  Parliamentary  Practice,  including  the  new  Reso- 
lutions of  the  two  Houses,  the  Suggestions  recently 
issued  by  the  Chairmen  of  Committees  for  their 
guidance,  a  view  of  the  question  what  constitutes  a 
locus  standi  to  be  heard  before  a  Railway  Committee 
against  a  bill,  and  the  grounds  of  opposition  that 
may  be  taken  by  opponents.  Forms  of  Railway 
Deeds  have  also  been  added,  and  a  brief  account  of 
the  present  functions  of  the  Board  of  Trade  in  re- 
gard of  Railway  Bills  before  Parliament.  The  Ap- 
pendix concludes  with  some  unreported  cases  re- 
lative to  the  liabilities  of  Provisional  Directors,  and 
the  important  case  of  Reg.  v.  The  Great  Western 
Railway  Company,  touching  the  rating  of  Railways, 
just  reported. 


4,  King's  Bench  Walk,  Temple, 
April,  1846. 


TABLE  OF  CONTENTS. 


PAGE 

INTRODUCTION         1 


LIB.  I. 

Of  Railways  at  Common  Law. 


Cap.  I. 

Of  Railways  made  hy  Owner  of  the  Soil  on  his 
own  Ground 


Cap.  II. 
Of  Railways  made  in  pursuance  of  Way  Leaves,  SfC. 

1.  Nature  and   Extent   of  Power  conferred  by   Way 

Leave,  &c.  . .  . .  . .  . .  . .         3 

2.  Rights  and  Liabilities  of  Owner  of  Railway  con- 

structed under  Way  Leave  . .  .  •  . .  7 

3.  Remedies  relating  to  such  Railways  . .  . .         8 


LIB.  II. 
Of  Railways  by  Statute. 

Cap.  I. 

Of  the  Provisional  Formation  of  a  Railway  Company 
previous  to  an  Act  of  Parliament,  and  of  the 
Powers,  Duties,  Rights,  and  Liabilities  growing 
thereout. 

1.  Of  the  Provisional  Formation  of  a  Company  for  the 

making  of  a  Railway  ..  ..  ..  ,.        H 


vi  Table  of  Contents. 

PAGE 

2.  Of  the  Powers,  Privileges,  and  Incapacities  of  a  Com- 

pany for  the  making  of  a  Railway  in  its  Provisional 
Slate ..  ..       26 

3.  Of  the  Duties  of  such  Company,  and  herein  more  par- 

ticularly of  the  Sleps  pieliminary  to,  and  of  the  ob- 
taining the  Act  of  Parliament  ..  ..  ..        35 

4.  Of  the  Riolits  and  Liabilities  growing  out  of  the  above 

state  of  things  ,,  ..  ..  ..  ..       41 


Cap,  II. 
Of  the  Act  of  Parliament. 

1.  Of  the  Validity  of  the  Act        61 

2.  Of  the  Construction  of  the  Act  ..  ..  ..       62 

I.  Of  the  general  Principles  of  Construction        . .  id. 

II.  Of  the  Principlesapplicable  to  particular  Clauses  63 
III.  Of  the  Principles  applicable  lo  the  Construction 

of  several  Acts  relating  to  the  same  Company  65 


Cap.  III. 
Of  the  Company,  as  constituted  under  the  Act. 
Part    I.  Of  the  Legality  of  a  Railway  Company  ..       67 

Part  II.  Of  the  Constitution  of  a  Railway  Company  . .  68 
Sect.  1.  Of  the  Constitution  of  the  Company  generally  . .  id. 
Sect.  2.  Of  the  Company  viewed  in  its  external  Relations        70 

(1)  Of  the  Mode  of  Action  prescribed  by  its  Act 

to  the  Company  ..  ..  ..       id, 

1.  Of  the  Organs  through  which  the  Com- 
pany must  act  ..  ..  ..       id. 

2.  Of  the  Forms  to  be  observed  by  the 

Company  in  acting  ..  ..       72 

(2)  Of  the  Powers,  Capacities,  and  Incapacities 

of  a  Railway  Company  ..  ..        74 

1.  Of  the  general  Nature  and  Extent  of 

Powers  of  Company  ..  ..       id, 

2.  Of  their  Suspension,  Cesser,  or  Deter- 

mination      ..  ..  ..  ..      127 

3.  Of  their  Revival,  &c 133 

(3)  Of  the  Rights  of  the  Company  incidental 

to  such  Powers    ..  ..  ..  ..      136 

1.  Rights  in  general         ..  ..  ..       id, 

2.  Rights  in  regard  of  particular  Contracts 

For  Purchase  of  Lands      ..  ..      138 

For  Performance  of  Works  ..     139 

a3 


Table  of  Contents.  vii 

PAGE 

(4)  Of  the  Duties  and  Obligations  of  a  Railway 

Company     ..          ..          ..          ..          ..  148 

(5)  Of  its  Buithens         154 

(6)  Of  its  public  Acts  and  Liabilities    ..          ..  160 

1.  Of  Liabilities  on  Contracts     ..          ..  id. 

2.  Of  Liabilities  in  Tort 173 

(7)  Of  Compensation 185 

1.  At  what  time  Compensation  to  be  made  id. 

2.  In  regard  of  what  Interests     ..          ..  187 

3.  For  what  Injuries        ..          ..          ..  191 

4.  Of  the    Proceedings  to  ascertain    the 

Amount  of  Compensation     ..          ..  198 

Where  Company  the  moving  Party  id. 

Of  the  Notice  to  take  lands      . .  id. 

Of  the  Precept              . .          . .  200 

Of  the  Inquisition  ..  ..  202 
Where  Owner  of  Land,  &c.    the 

moving  Party    .•          ..          ..  208 

5.  Of  moving  for  a  new  Trial,  Certiorari, 

&c 211 

6.  Of  the  Title id. 

7.  Of  the  Conveyance 212 

8.  Of  the  Purchase  Money          ..          ..  214 

9.  Of  the  Costs 225 

Sect.  3.  Of  the  Company  viewed  in  its  internal  Relations  234 

(1)  Of  the  Individual  Shareholders      ..          ..  id. 

(2)  Of  the  general  Meetings  of  the  Company  . .  237 

(3)  Of  the  Directors 239 

(4)  Of  the  Officers,  Servants,  &c 246 

(5)  Of  Bye  Laws           247 

(6)  Of  Registration 249 

(7  ^  Of  the  Books,  Records,  &c.  of  the  Company  251 

Sect.  4.  Of  the  Capital  of  the  Company 252 

(1)  Of  the  Capital  of  the  Company  generally. .  id. 

(2)  Of  Shares 254 

1.  Of  their  Nature           id. 

2.  Of  their  Incidents        ..           ..           ..  id. 

Of  their  Capability  of  Transfer         ..  255 

Of  their  Liability  to  Forfeiture         ..  274 

(3)  Of  Calls 275 

1.  Of  the  Power  of  making  Calls  generally  id. 

2.  Of  the  Corresponding  Duty     ..          ..  276 

3.  Conditions  precedent  . .          . .          . .  277 

4.  Liability  to  Calls         279 

Generally       . .          . .          . .          . .  id. 

Determination  or  Devolution  of  Liability  282 

By  Transfer           283 

By  Forfeiture         290 

5.  Requisites  of  Calls 291 


viii  Table  of  Contents. 

PAGE 

Cap.  IV. 
Of  the  Construction  of  the  Railway    ..         ..      296 


Cap.  V. 
Of  the  User  of  the  Railway. 

1.  Of  the  User  generally           298 

2.  Of  the  Right  to  Tolls             300 

1.  Of  the  general  Nature  and  Extent  of  the  Right  to 

Tolls id. 

2.  How  it  may  be  defeated    . .          . .          . .          . .  302 

3.  Of  a  Railway  Company  viewed  as  Carriers             ..  303 

1.  Of  Goods id. 

2.  Of  Passengers 322 


Cap.  VI. 

Of  certain  general  Statutory  Provisions  for  the  Re- 
gulation, 8fc.  of  Railway  Companies,  whereby  their 
Powers,  Duties,  Obligations,  HfC.  are  more  or  less 
extensively  modified. 

1.  Of  Powers  of  Supervision  reserved  to  Board  of  Trade     330 

2.  Of  Provisions  for  the  Extension  and  Enlargement  of 

the  Powers  of  Railway  Companies  . .  . .     339 

3.  Of  Regulations  touching  Matters  of  Police  ..     342 

4.  Of  Provisions  qualifying  and  extending  the  Duties, 

&c.  of  Railway  Companies  ..  ..  ,.     345 

5.  Of  certain  Conditions  annexed  to  future  Grants  of 

Parliamentary  Powers  for  making  of  Railways    . .     347 


Cap.  VII. 
Of  Remedies. 

Part  I.  Of  Remedies  for  or  against  Railway  Companies. .  349 
Sect.  1.  Of  Remedies   for   Railway    Company   against 

Shareholders  . .          . .          . .          . ,          . .  id. 

1.  At  Law          id. 

2.  In  Equity 362 


Table  of  Contents, 


PAGE 


Sect.  2.  Of  Remedies  for  Railway  Company  against 

Strangers         363 

1.  At  Law          ..           ..           ..           ,.           ..  id. 

2.  In  Equity 366 

3.  Of  Criminal  Remedies           369 

Sect.  3.  Of  Remedies  for  Individual  Members  of  Rail- 
way Company  against  Company        ..          ..  370 

1.  At  Law         . .          . .          ..          ..          ..  id. 

2.  In  Equity 371 

Sect.  4.  Of  Remedies  for  Strangers  against  Company. .  377 

1.  At  Law          id. 

2.  In  Equity 404 

3.  Of  Criminal  Remedies          ..          ..          ..  421 

Part  II,  Of  liemedies  between  Individual  Shareholders..  423 

1.  At,  Law          . .          ..          ..          .,          ..  id. 

2.  In  Equity       . .          . .          . .          . .          . .  id. 


APPENDIX. 


Statutes. 

Act  to  compel  Clerks  of  ihe  Peace  for  Counties  and  other 
Persons  to  take  the  Custody  of  such  Documents  as  shall 
be  directed  to  be  deposited  with  them  under  tiie  Stand- 
ing Orders  of  either  House  of  Parliament,  1  Vict.  c.  83 

Act  to  provide  for  the  Conveyance  of  the  Mails  by  Rail- 
ways, 1  &  2  Vict.  c.  98  

Act  to  provide  for  the  Custody  of  certain  Monies  paid  in 
pursuance  of  the  Standing  Oiders  of  either  House  of 
Parliament  by  Subscribers  to  Works  or  Undertakings  to 
be  effected  under  the  Authority  of  Parliament,  1  &  2 
Vict.  c.  117        

Act  to  amend  an  Act  of  the  Fifth  and  Sixth  Years  of  the 
Reign  of  His  late  Majesty  King  William  the  Fourth  re- 
lating to  Highways,  2  &  3  Vict.  c.  45 

Act  for  regulating  Railways,  3  &  4  Vict.  c.  97  . . 

Act  for  the  better  Regulation  of  Railways,  and  for  the 
Conveyance  of  Troops,  5  &.  6  Vict.  c.  55 

Act  to  attach  certain  Conditions  to  the  Construction  of 
future  Railways  authorized  or  to  be  authorized  by  any 
Act  of  the  present  or  succeeding  Sessions  of  Parliament, 
and  for  other  Purposes  in  relation  to  Railways,  7  &  8 
Vict.  c.  85  . .  J 

a6 


X  Table  of  Contents — /Appendix. 

PAGE 

Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16      . .       liii 
Operation  of  the  Act,  sect.  1. 
Interpretation,  &c.  2 — 4. 
Form  in  which  portions  of  Act  may  be  incorporated 

with  other  Acts,  5. 
Clauses  providing  for  the  distribution  of  the  Capital 

into  Shares,  6 — 13. 
Transfer  of  Shares,  14 — 20. 
Payment  of  Subscriptions  and  enforcement  of  Calls, 

21-28. 
Forfeiture  of  Shares  for  nonpayment  of  Calls,  29 — 35. 
Execution  against  Shareholders  to  the  extent  of  their 

Shares  not  paid  up,  36,  37. 
Power  to  borrow  Money,  and  Rights  of  Mortgagees, 

&c.  38—55. 
Conversion   of  the   borrowed   Money   into  Capital, 

56—60. 
Consolidation  of  the  Shares  into  Stock,  61 — 64. 
Application  of  Capital.  65. 
General  Meetings  and  Right  of  voting,  66—80. 
Appointment  and  Rotation  of  Directors,  81 — 89. 
Powers  of  the  Directors,  90 — 91. 
Proceedings  of  the  Directors,  92 — 100. 
Appointment  and  Duties  of  Auditors,  101 — 108. 
Accountability  of  Officers,  109  —  il4. 
Keeping  of  Accounts  and  Right  of  Inspection  by  the 

Shareholders,  115—119, 
Making  of  Dividends,  120—123. 
Making  of  Bye-laws,  124—127. 
Proceedings   for   settling  Questions  by   Arbitration, 

128—134. 
Giving  of  Notices,  1.35—139. 
Proof  of  Debts  in  Bankruptcy,  140. 
Tender  of  Amends,  141. 

Recovery  of  Damages  and  Penalties,  142 — 158. 
Appeal  to  the  Quarter  Sessions,  159,  160. 
Access  to  Special  Act,  161,  162. 
Act  not  to  extend  to  Scotland,  163. 
Provision  for  recovering  Calls  against  Shareholders 

residing  in  Scotland,  164. 
Alteration  of  Act,  165. 

Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18..  ..         c 

Operation  of  Act,  sect.  1. 

Interpretations,  &c.  2 — 4. 

Form  in  which  portions  of  Act  may  be  incorporated 
with  other  Acts,  5. 

Clauses  regulating  the  Purchase  of  Lands  by  Agree- 
ment, and  enabling  Parties  having  limited  Interests 
to  sell  and  convey,  6 — 11. 


Tahle  of  Contents — Appendix.  xi 

PAGE 

Clauses  regulating  the  Purchase  of  Lands  for  addi- 
tional Accommodation,  12  —  15. 

Clauses  providing  for  settling  Cases  of  disputed  Com- 
pensation either  by  Two  Justices  or  by  Arbitration 
or  by  a  Jury,  16 — 23. 

]\Iethod  of  proceeding  before  Justices,  24. 

Method  of  proceeding,  &c.,  in  case  of  Arbitration, 
25-37. 

Method  of  proceeding,  &c.,  before  a  Jury,  and  Costs 
oflnquiry,  38— 57. 

Method  of  ascertaining  Compensation  to  be  made  to 
absent  Parlies,  58 — 67. 

Method  of  proceeding  by  Paity  claiming  Compensa- 
tion from  Company,  68. 

Deposit  and  Application  of  the  Compensation  coming 
to  Parties  having  limited  Interests,  or  prevented 
from  treating,  or  not  making  Title,  69 — 79. 

Costs  in  cases  of  Money  deposited,  80. 

Form  and  Costs  of  Conveyances,  81 — 83. 

Clauses  regulating  the  Entry  on  Lands,  84 — 90. 

Proceedings  in  case  of  Refusal  to  deliver  Possession,  91. 

Party  not  to  be  required  to  sell  Part  of  House,  92. 

Clauses  providing  for  small  Parcels  of  intersected 
Land,  93,  94. 

Clauses  relating  to  Copyholds,  95 — 98. 

Clauses  relating  to  common  Lands,  99 — 107. 

Clauses  relating  to  Lands  in  Mortgage,  108 — 114. 

Clauses  relating  to  Lands  subject  to  Rent-charges, 
115—118. 

Clauses  relating  to  Lands  subject  to  Leases,  1 19 — 122. 

Limit  of  Time  for  compulsory  Purchase,  123. 

Clauses  providing  for  Cases  where  Interests  in  Lands 
have  been  omitted  to  be  purchased,  124 — 126. 

Clauses  providing  for  the  Sale  of  superfluous  Land, 
127—132. 

Land-tax  and  Poor's  Rate  to  be  made  good,  133. 

Service  of  Notices  on  Company,  134. 

Tender  of  Amends,  135. 

Recovery  of  Penalties,  &c.,  136 — 149. 

Access  to  special  Act,  150,  151. 

Act  not  to  extend  to  Scotland,  152. 

Alteration  of  Act,  153. 

Railways  Clauses  Consolidation  Act,  8  Vict.  c.  20        ..      clvi 
Operation  of  the  Act,  sect.  1. 
Interpretation,  &c.,  2 — 4. 

Form  in  which  Portions  of  the  Act  may  be  incorpo- 
rated with  other  Acts,  5. 


xii  Table  of  Contents — Appendix. 

PAGE 

Clauses  relating  to  the  Construction  of  the  Railway, 

6—24. 
Drainage  of  Lands,  25 — 29. 
Powers  of  the  Company  with  regard  to  the  temporary 

Use  of  Lands  during  the  Construction  of  the  Rail- 
way, 30—44. 
Power  to  take  Lands  for  additional  Stations,  &c.,  45 
Crossing  of  Roads  and  Construction  of  Bridges,  46 

—62. 
Screens  for  the  Protection  of  Turnpike  Roads,  &c. 

to  be  made,  if  required,  by  the  Board  of  Trade, 

63,64. 
Repair  and  Construction  of  Bridges,  &c.  in  certain 

cases,  65,  66. 
Notices.  &c.  by  and  to  Board  of  Trade,  67. 
Works    for  the    Protection   and   Accommodation    of 

Lands  near  the  Railway,  68 — 75. 
Branch  Railways  communicating  with  the  Railway, 

76. 
Workingof  Mines  under  or  near  the  Railway,  77 — 85. 
Clauses  regulating  the  Carriage  of  Passengers  and 

Goods,  the  Amount  and  Collection  of  Tolls,  Sec. 

86—107. 
Power  to  make  Bye-laws  for  regulating  the  Use  of 

the  Railway,  108—111. 
Clauses  regulating  the  Exercise  of  Power  to  lease 

the  Railway,  112,  113. 
Clauses  relating  to  the  Carriages  and  Engines  to  be 

brought  on  the  Railway,  114 — 125. 
Provisions  relative  to  settlement  of  Disputes  by  Arbi- 
tration, 126—137. 
Service  of  Notices  on  C^ompany,  138. 
Tender  of  Amends,  139. 

Recovery  of  Damages  and  Penalties,  &c.,  140 — 160. 
Money  paid  into  Bank  of  Ireland  exempt  from  Usher's 

Poundage,  161. 
Access  to  special  Act,  162,  163. 
Act  not  to  extend  to  Scotland,  164. 
Alteration  of  Act,  165. 

Act  to  restrict  the  Powers  of  selling  or  leasing  Railways 
contained  in  certain  Acts  of  Parliament  relating  to  such 
Railways,  8  &  9  Vitt.  c.  96,  ccxvia. 

Act  to  facilitate  the  Admission  in  Evidence  of  certain  offi- 
cial and  other  Documents,  8  &:  9  Vict.  c.  113,  ccxvifc. 


Table  of  Contents — Appetidtx.  xiii 

Reports  of  Proceedings  of  Committees. 

PAGE 

Report  of  Proceedings  of  Committee  of  Session  1845  on 
Group  (X)  of  Railways         ..  ..  ..  ..      ccxvii 

Report  of  Proceedings  of  Committee  of  Session  1845  on 
Group  (A)  of  Railways  ..  ..  ..  ..    ccxli 


Parliamentary  Practice. 


.ccxlix 
.  cclxiv 
.cclxxi 
.  ccci 
.  cccvi 


I.  Preliminary  Proceedings     .. 
II.   Provisions  to  be  inserted  in  Railway  Bills 

III.  Proceedings  in  the  House  of  Commons 

IV.  Proceedings  in  the  House  of  Lords 
V.  Evidence  in  support  of  Railway  Project    .. 

YI.  Of  the  Opposition  to  a  Railway  Bill,  and  the  Evi- 
dence adducible  in  Support  thereof       . .  . .  cccvii 

VII.  Proceedings  relating  to  Bills  re-introduced  into  Par- 
liament during  the  present  Session        ..  cccxxxii 
VIII.  Of  the  Costs             ..          ..          ..          ..  cccxxxv 

IX.  Resolutions,  &c.  of  the  present  Session  relative  to 

Railway  Bills     ..  ..  ..  ..       cccxxxviii 

X.  Suggestions  by  Chairmen  of  Committees  for  Con- 
sideration of  Committees,  Session  1846  . .     cccl 


Forms. 

Parliamentary  Contract      ..  ..  ..  ..  ..cccliii 

Subscribers'  Agreement     . .  . .  . .  . .  . .  ccclvi 

Notice  to  Owners  and  Occupiers  of  intended  Application 

to  Parliament  ..  ..  ..  ..  ccclxiv 

Functions  OF  Board  OF  Trade  ..  ..  ..  ccclxv 


MS.  Cases,  &c. 

Rasirick  v.  Lambert            . .          . .          . .  . .  ccclxviii 

Vignoles  v.  Lefroy  . .          . .           . .           . .  . .  . .        ib. 

Stephen snn  \.Rudge           ..           ..          ..  ..  ccclxix 

Beetham  V.  Cook      ..           ..           ..           ..  ..  ..        ib. 

Simon  V.  Fectnr      . .           . .           . .           . .  . .  . .        ib, 

Elkiiigtoii  \.  Fergusson  and  Avother         ..  ..  ..ccclxx 

Reg.  \.  Great  Western  Railway  Co.          ..  ..  ..        ib. 

INDEX ccclxxiii 


LIST   OF   CASES. 


PAGE 

Adder's  Cliarity,  Exparte  Trustees  of,  &c,       '    ..  ..   226 

Agar  V.  The  Regent's  Canal  Company  ..  128,  405 

Aldred  and  others  v.  North  Midland  Railway  Company    98, 164 
Aldridge  v.  Great  Western  Railway  Company  ..  182 

Angell,  Exparte        ..  ..  ..  ..  ..  ..    228 

Arkwright,  Exparte        ..  ..  ..  ..  ..  271 

Arniitage  v.  Grand  Junction  Railway  Company     . .  . .   386 

Arnold  «.  Mayor  of  Poole  ..  ..  ..  ..  137 

Arnsby  t;.  Woodward  ..  ..  ..  ..  ..43 

Athorpe,  Exparte  ..  ..  ..  ..  ..  230 

Atkinson  D.  Heaton  ..  .,  ..  ..  ..  ..    264 

Alt. -Gen.  v.  Birraingham  and  Derby  Railway  Company         321 
Att.-Gen.  D.  Eastern  Counties  Railway  Company    ..     88,101, 

107,  411 
Att.-Gen.  v.   Eastern   Counties    Railway    Convpany   and 

Northern  and  Eastern  Railway  Company  65,  89,  133,  410 
Att.-Gen.   v.   London   and    Southampton   Railway    Cou)- 

pany  ..  ..  98,  100,  108 

Att.-Gen.  v.  Manchester  and  Leeds  Railway  Company 

107, 407,  408,  409 

Atl.- Gen. «.  Wilson  245,362 

Audeline  v.  London  and  South  Western  Railway  Company  305 
Aylesbury  Railway  Company  I).  Mount  ..         284,350,355 

Aylesbury  Railway  Company  D.Thompson         ..  285,  360 

Barnard  I'.  Wailis        4,10 

Earned  v.  Hamilton  ..  ..  ..  ..  ..    263 

Barnesley  Canal  Company  ».  Twibell  ..  ..    121,406 

Barrett  1).  Stockton  and  Darlington  Railw.  Co.     ..  64,301 

Beckett  v.  Bradley ..  ..  267 

Beetham  D.  Cooke    ..  ..  ..  ..  ..  -.55 

Bell  V.  Francis    . .  . .  . .  . .  . .  . .  57 

Bell  V.  Hull  and  Selby  Railway  Company,    64,  101,  405,  407, 

409,  410,411,412 
Benson  D.  Hadfield  ..  ..  ..  ..  ..       2H,373 

Beverley  D.  Lincoln  Gas  Light  and  Coke  Company         ..  137 

Bignold,  Exparte "    . .       270,271 

Birmingham,   Bristol  and  Thames  Junction  Railway  Com- 
pany «.  Locke         282,290,355,358 


XV i  List  of  Cases. 

PAGE 

Birmingham,    Bristol  and  Thames  Junction  Railway  Com- 
pany i;.  White 252,362 

Bishop  u.  North  ..  ..  ..  ..  ..  79 

Bishop  (.f  Durham,  Exparte  229,230 

Bishop  of  Ely,  Exparte  ..  ..  ..  ..  229 

Blain  v.  Agar  . .  . .  . .  . .  . .  , .      22 

Blakeraorei'.  Glamorganshire  Canal  Company    62,  74,  128,  129, 

130,  131,  149,  382,  407,  408 

Bligh  u.  Brent    ..  ..  ,.  ..  ..  ..  254 

Bourne  v.  Freetli      . .  . .  . .  . .  . .  . ,     2 3 

Boxmoor,  Exparte,  Trustees  of  Waste  Lands  in  re  Birming- 
ham Railway  Coinpanv      ..  ..  ..  ••  232 

Boyd  V.  Croydon  Railway  Company  ..  ..  ..    378 

Boys  u.  Pink        ..  ..  ..  ..  ..  ..  312 

Bradley  «  Holdsworth  254,  2i7 

Bridge  r.  Grand  Junction  Railway  Company  . .  ..  386 

Broughton  v.  Manchester  Water  Works  Company  ..      82 

Brown  y.  Bamford  ..  ..  ..  ..  ••  272 

Bruce  t).  Willis  212,21) 

Bull  V.  Morrell 246 

Calder  and  Hebble  Navigation  Company  v.  Pilling  . .    247 

Garden  V,  General  Cemetery  Company  ..  ••  371 

Carpue  v.  London  and  Brighton  Railway  Company.  .325,  326, 

379,  3B0 
Cary  v.  Mathews  ..  ..  ..  ..  ..  175 

Calor  V.  Croydon  Canal  Company  . .  188,  217,  2Si-^ 

Chadwick  «.  Clarke        ..  ..  ..  ..  ..     43,44 

Charitable  Corporation  I'.  Sutton      ..  ..  ..       245,246 

Cheltenham  and  Great  Western  Union  Railway  Company  v. 

Daniel  282,357 

Cheltenham  and  Great  Western  Union  Railway  Company  v. 

Fry        . .  . .  . .  . .  . .  . .  . .    35  I 

Cheltenham  Railway  Company  I).  Price  ..  ..  360 

Child  V.  Hudson's  Bay  Company    ..  ..  ..  ..    247 

Church  W.Imperial  Gas  Light  and  Cole  Company       . .  137 

Clarence  Railway  Company  v.   Great  North  of  England, 

Clarence  and  Hartlepool  Junction  Railway  Company.. 84, 

85,  89,  111,  130.  369,410 

Clarke  v.  Imperial  Gas  Light  and  Coke  Company     71,  73,  Q>, 

169,  243,25-2; 
Coats  t).  Clarence  Railway  Company         ..  ..  ..90 

Colley  r.  Smith  ..  ..  ..  ..  ..  44 

CoUinson  v.  Newcastle  and   Darlington  Railway  Company,  99, 

377 

Colt  V.  Wollaston 22 

Cook  D.  .Aylesbury  Railway  Company  ..  ..  179 

Cooke,  Exparte,  in  re  Liverpool  and  Manchester  Railway 

Company      . .  . .  . .  . .         . .  . .       S30 


List  of  Cases.  xvii 

PAGE 

Corporation  of  Trinity  House,  Exparte       ..  ..  ..   232 

Corrigali  v.  London  and  Blackwall  Railway  Company,  201,  202, 

204,  208,  210,  219,  220. 227 

Cory  V.  Norwich  and  Yarrnouth  Railway  Company  410,415,  416 

Croinford  Railway  Company  v.  Lacey  ..61,  67,  277,  279,  280, 

282, 360 
Cumming  u.  Prescott  242,268 

Daly  t;.  Thompson         37,46,53,249,250 

Dand  t),  Kingscote    . .  . .  . .  . .  . .  . .        4 

Davis  V.  London  and  Blackwall  Railway  Company       181,  385 
Decks  V.  Stanhope   ..  ..  ..  ..  ..  ..   424 

Deere  D.  Guest  ..  ..  ..  ..  ..  ..  10 

De  Grave  D.  Mayor,  &c.  of  Monmouth     ..  ..  ..    162 

Dewers  v.  Pike  . .  . .  . .  . .  . .  . .  246 

Dickinson  t),  Valpy  ..  ..  ..  ..  ..57 

Dickman  t).  Blackwall  Railway  Company  ..  ..  181 

Dobson,  Exparte,  in  re  Boult  268,270 

Doe  rf.  Bryan  V.  Bancks      ..  ..  ..  ..  ..43 

Doe  J.  Fisher «.  Roe       ..  ..  ..  ..  ..       348 

Doe  d.  Hutchinson  v.  Manchester,  Bury  and  Rossendaie 

Railway  Company       ..  ..  ..  ..  ..   216 

Doe  d.  Myatt  v.  The  St.  Helen's  and  Runcorn  Gap   Rail- 
way Company      ..  ..  ..  ..  ..    126,244 

Doe  d.  Payne  v.  The  Bristol  and  Exeter  Railway  Com- 
pany         78,129,134,206,217 

Doe  <i.  Wawn  D.  Horn  ..  ..  ..  .,  ..177 

Doo  V.  London  and  Croydon  Railway  Company      ..    163,  199 
Draper u.  Shurmer  ..  ..  ..  ..  ..    303 

Dudley  Canal  Company  r.  Grazebrook  ..  ..        120 

Doubleday  i;.  Muskett  ..  ..  ..  ..  ..56 

Dun    Navi;jation   Company    v.    North    Midland    Railway 

Company 135,405,406,407 

Duncuft  D,  Albrecht 257,264 

Duiidalk  Western  Railway  Company  v.  Tapster  ..  350,  356 
Dunston  i;.  The  Imperial  Gas  Light  Company  ..  ..        242 

Durham  and  Sunderland  Railway  Company  v.  Walker  4,  5,  8 
Durham  and  Sunderland  Railway  Company  v.  Wawn  177,  367 
Durham,  (Bishop  of),  Ex  parte         ..  ..  ..   229,230 

Eastern  Counties  Railway  Company  v.  Cooke       ..  ..   356 

Eastern  Counties  Railway  Company  v.  Cooper  ..        356 

Eastern  Counties  Railway  Company  «.  Fairclough  ..   356 

Eastern  Counties  Railway  Company  v.  Tufnell         ..   213,  233 
Edger  D.  Knapp         ..  ,.  ..  ..  ..  ..44 

Edinburgh  and  Dalkeith  Railway  Company  v.  Wauchope 

63,  302 
Edinburgh  and  Leiih  Railway  Company  v.  Dawson     ..       350 


xviii  List  of  Cases. 

PAGE 

Edinburgh,   Leith  and    Newhaven    Railway   Company  v. 

Hebblewiiite 290,  352,  354,  355 

Edwards  v.  Grand   Junction  Railway  Company  ..  ..    163 

Elkington  v.  Fergusson      . .  . .  . .  . .  . .        55 

Ellison  u.  I3ignold 239 

Elwell  n.  Grand  Junction  Railway  Company  ..      328,387 

Ely,  (Bishop  of),  Exparie  229 

Eton  College,  (Provost  of  ),  &c.  Exparte  ..  ..    23'2 

Eton  College,  (Provost  of),  &c.  v.  Great  Western  Railway 

Company     ..  ..  ,.  ..  ..  ..  117 

Evans  V.  Dublin  and  Drogheda  Railway  Company       . .       384 

Farrow  v.  Vansittart  . .  . .  . .  . .  . .   4,  9 

Fisher  t).  Thames  Junction  Railway  Company . .  ..        386 

Fishmongers' Company  y.  Robertson  ..  ..  ..    137 

Foss  V.  Harbottle       . .  . .   35,  64,  162,  237,  239,  243,  424 

Fowler  i;.  Churchill  272 

Fox  V.  Clifton 22,  23 

Fox  V.  Frith  246 

Fyler  i;.  Fyler 250,251,274,290 

Gardner,  Exparte,  in  re  The  Eastern    Counties    Railway 

Company  ..  ..  ..  ..  ..  ..    229 

Gibbons  ii.  Waterloo   Bridge  Company  ..  ..        419 

Gildart  t).  Gladstone    ..  ..  ..  ..  ..   64,301 

Gillon  V.  Boddington        . .  . .  . .  . .  •  •        382 

Glascoti  w.  The  Copper  Miners  Company  ..  ..   376 

Goddard  u.  Hodges  ..  ..  ..  ..  ..  43 

Golden  D.  Manning  ..  ,.  ..  ..  ..   308 

Gordon  v.  Chelteniiam  and  Great  Western   Railway  Com- 
pany   118,407,409,410 

Grainge,  Exparte      ..  ..  ..  ..  ..  ..    223 

Grand  Junction  Railway  Company  v.  White  ..   122,  363 

Great  North  of  England  Railway  Company  i;.  Biddulph  ..281, 

294,  295,  351 
GreatNorthof  England,  &c..  Railway  Company  «.  Clarence 

Railway  Company    ..  ..   89,111,367,369,408,410 

Great  Western  Radway  Company  Amendment  Act,  in  re     225 
Green  I).  Barrett       ..  ..  ..  ..  ..  ..22 

Green  i).  Murray  ..  ..  ..  ..  ..        262 

Greenhaigh  v.  Manchester  and  Birmingham  Railway  Com- 
pany       165,166,408,413 

Hall  V.  Mayor,  kc,  of  Swansea  . .  . .  . .  . .        137 

Hammon  I'.  South  Eastern  Railway  Company        ..  .    182 

Hancock  v.  Hodgson        . .  . .  . .  . .  . .        246 

Hannuic  i>.  Goldner     ..  ..  ..  ..  ..    256,260 

Hare  0.  Waring 258,260,261 

Hargreaves  v.   Lancaster   and  Preston   Junction    Railway 

Company  ..  ..  ..  ..    63,164,165,166 


List  of  Cases.  xix 

PAGE 

Hargreaves  v.  Parsons      . .  . .  . .  . .  . .        5257 

Harrison,  Exparte    ,.  ..  ..  ..  ..  ..   271 

Harrison «.  Heatheni       ..  ..  ..  ..  ..    46,57 

Hawthorn   v.    Newcastle-upon-Tyne    and    North    Shields 

Railway  Company         ..  ..     145,146,148,177,387 

Hemiiiingway  jj.  Fernandez  ..  ..  ..  ..        2,3 

Her  Majesty's  Attorney-Ueneral  v.  The  London  and  South- 
ampton Railway  Company         ..  ..  ..  ..98 

Hewitt  w.  Price 256 

Hibhiewhite  u.  M'Morine      ..  ..   256,  259,  265,  267,  281 

Hichens  t).  Congreve        ..  ..  ..  ..  ..  35 

Hill  V.  Manchester  and  Salford  Waterworks  Company 

71,74,  169,  252,378 
Hinton  t).  Dibbiu     ..  ..  ..  ..  ..  ..   314 

Hirst,  Exparte 229 

Holmes  w.  Higgins   ..  ..  ..  ..  ..  ..43 

Hope  V.  Newcastle  and  Darlington  Railway  Company  179 

Hornby  j;.  Houlditch 283 

Home,  Exparte  249,274 

Howden  (Lord)  n.  Simpson  ..  ..  ..     58,59,60 

Huddersfield  Canal  Company  v.  Buckley  . .  . .        283 

Hun)ble  v.  Langston  . .    259,  260,  261,  263,  266,  286,  288 

Humble  y.  Mitchell  257,263 

Hyde  «.  Great  Western  Railway  Company  ..   172,215 

Hyde  V.  Trent  and  Mersey  Navigation  Company  ..       308 

Illingworth  v.  Manchester  and  Leeds  Railway  Company 

95.  102,406,  407,  412,417 
Imperial  Gas  Light  Conipanv  u.  Clarke  ..      245,252,349 

Innocent  D.  Nortii  Midland  Railway  Company 

85,  3  86,  187,  194,  407 
Jssauchaud,  Exparte 217,219,223 

Jackson  «.  Cocker  ..  ..  ..  ..   46,47,286 

Jones,  Exparte      ..  ..  ..  ..  ..  ..        219 

Jones  V.  Great  Western  Railway  Company  169,  214,  408 

Jones  V.  Rose  ..  ..  ..  ..  ..  ..    372,375 

Josephs  V.  Pebrer  ..  ..  ..  ..  ..  46 

Kemp  V.  London  and  Brighton  Railway  Company 

103,  104,  207,  405,  409,  410 
Kempson  t).  Saunders      ..  ..  ..  ..  ..   48,49 

Kennet  and  Avon  Canal  Company  v.  Great  Western  Railway 

Company  ..  ..  ..  ..  ..  ,.    381 

Keppell  i;.  Bailey  '2,80 

Kerridge  j;.  Hessey  ..  ..  ..  ..  54,55 

Kidwelly  Canal  Company  v.  Raby       ..  ..  ..   42,  237 

King's  Lyini,  Mayor,  &c.  of,  D.  Peraberton  ..  ..   128 


XX  List  of  Cases. 

PAGE 

Lake ».  Duke  of  Argyle  ..  ..  ..  ..         57 

Lancaster  Canal  Navigation,  Company  of  Proprietors  of,  r. 

Parnaby 152 

Lane  I'.  Newdigate  ..  ..  ..  ..  ..  ..    408 

Lawrence  t).  Knowles       ..  ..  ..  ..  ..        259 

Leei).  Milner 75,77,129,130,197 

Leeman  i;.  Lloj'd      ..  ..  ..  ..  ..  46,48 

Lichfield,  Mayor  of,  &c.  l!.  Simpson      ..  ..  ..  100 

Limerick  and  VVaterford  Railway  Company  v.  Fraser      . .   350 
Lini^ford  V.  Barber  . .  . .  . .  . .  . .        283 

Lister  u.  Lobley        .,  ..  ..  ..  ..  ..    187 

Lloyd  I).  Wigney 381,383 

London   and    Birmingham    Railway    Company    v.   Grand 

Junction  Canal  Company         ••  ..      88,93,367,409 

London  and  Birmingham  Railway  Company  v.  Winter  137,  138 
London  Bridge  Act,  in  re  ..  ..  ..  ..        230 

London  and  Brighton  Railway  Company  v,  Blake  ..  109,  110, 

367,  407 
London  and  Brighton  Railway  Company  v.  Cooper..  106,  367 
London  and  Brighton  Railway  Company  d.  Fairclough.  .251, '255, 

265,266,279,  281,290,295,351,353,  354,359,361,  362 
Loudon  and  Brighton  Railway  Company  v.  Wilson  ..239,  279, 

353, 354 
London  and  Greenwich  Railway  Company,  in  re     ..    204,  226 
London  and  Greenwich  Railway  Company  v.  Goodchild  ..  126, 

139 
London  Grand  Junction  Railway  Company  v.  Freeman    . .    46, 

282,  294,  358,  359 
London  Grand  Junction  Railway  Company  v.  Graham  282,358 
London  Grand  Junction  Railway  Company  u.  Gunstoue  282,358 
Long  V.  Yonge      . .  . .  . .  . .  . .  . .        424 

Lord  How  den  D.  Simpson      ..  ..  ..  ..   58,59,60 

Lord  Petre  v.  Eastern  Counties  RaiUvay  Company.  .58,  59, 117 

Lovell  i).  Hicks 22 

Lucas  V.  Birmingham  and  Gloucester  Railway  Company..   315 
Ludford  D.  Barber  ..  ..  ..  ..  ..  283 

Lund  i;.  Blanshard  ..  ..  ..  ..   362,375,376 

M'Intosh  v.  Midland  Counties  Railway  Company  ..      140 

Madon,  Exparte,  in  re  Great  Western  Railway  Company     231 
Manby  u.  Long       ..  ..  ..  ..  ..  ..175 

Mangles  v.  Grand  Collier  Dock  Company .  .40,  279,  288,  292. 

293.  373,  374 
Mannings.  Eastern  Counties  Railway  Company.  .122,193,  208, 

345 
Manser  i'.  Northern  and  Eastern  Counties  Railway  Com- 
pany   90,105,405 

Marc  V.  Malaclii  . .  . .  . .  . .  . .  . .       423 


List  of  Cases.  xxi 

PAGE 

Marsh,  Exparte        . .  . .  . .      3^ 

Marsliall,  Exparte,   in    re  Great   Western  Railway  Com- 
pany ..  ..  ..  ..  ..  ..        231 

Masternian,  Exparte  ..  ..  ..  ..  ..271 

JMiiyhew  V.  Nelson  ..  ..  ..  ..  ..        3i3 

Major,  5(e.,  of  Lichfield  t),  Simpson  ..  ..  ..    lOO 

Mayor  of  Southam|itun  t).  Graves  ..  ..  ..        252 

MidlHnd  Counties  Railway  Company  V.  Oswin  ..    207,  213 

Midland  Couniies  Railway  Company  v.  Wescomb        213,  233 
Mitchell  V.  Newell,  in  re  Manchester  and  Leeds  Railway 

Act        230 

Molyneux,  Exparte,  in  re  Manchester  and  Liverpool  Rail- 
way Company       ..  ..  ..  ..  ..    230,231 

Moneypenny  v.  Hartland     . .  . .  . .  . .  . .      oi 

Monkland  and  Kirkintilloch  Railway  Company  d.  Dixon  79, 124; 
Monmouth  Canal  Company  I).  Harford       .,  ..  ,.        Q 

Mouchett  D.  Great  Western  Railway  Company  ..       407 

Muschamp  v.   Lancaster    and   Preston    Junction   Railway 

Company  ,.  ..  ..  ..  ..  ..   308 

Newton,  Exparte         ..  ..  ..  ,.  ..   224,233 

Nockells  v.  Crosby  ..  ..  ..  ..  ..23,42 

Norman  v.  London  and  Brighton  Railway  Company        ..   313 
North  Union   Railway  Company    v     Bolton   and    Preston 

Railway  Company  ..      124,299,368,369,406,416 

Northam  Bridge  and  Koads,  Company  of  Proprietors  of,  v. 

London  and  Southampton  Railway  Company  106,  J  09,  408 
Norihvvicke,  Exparte  ..  ..  ..  ..    224,231 

Norwich  and  Lowestoft  Navigation,  Company  of  Proprie- 
tors of  the,  n.  Theobald  .,  ..    '      ,.        277,278 

Oakley,  Lord,  v.  Kensington  Canal  Company   ..  ..       381 

Onslow,  Exparte       ..          ..          ..          ..          ..  ..   229 

Ord,  Exparte        ..           ..           ..           ..           ..  ..        270 

Owen  D.  Burnett      ..          ..          ..          ..          ..  ..   3i3 

Palmer  v.  Grand  Junction  Railway  Company.  .306,  309,  327, 

379 
Parker  i;.  Great  Western  Railway  Company  ..62,319,320,377 
Parkes,  Exparte       ..  ..  ..  ..  ..  ,.    391 

Parkcs  t).  Great  Western  Railway  Company      ..  .,        I7i 

Pearson  v.  London  and  Croydon  Railway  Company         ..   371 
Peiniey  v.  Great  Western  Railway  Company  .  .83,  212,  220,  221 
Perkins  i>.  J)eptford  Pier  Company        ..  ..  ..        244 

Petre,  Lord,  w.  Eastern  Counties  Railway  Company    38,  59,  1 17 
Perkins  t;.  Pritchard  ..  ..  ..  ..  ..    244 

Phelps  v.  Lyie      ..  ..  ,.  ..  ,.  ..        242 

Phene  v.  Gillon        ..  ..  ..  ..  ..  ..   ^68 


xxii  List  of  Cases. 

PAGE 

Pickford  V.  Grand  Junction  Railway  Corapan3'.  .304,  303,  308, 

318,  519,  321.  385 
Pitchford  v.  Davis    . .  , .  . .  . .  . .  . .      23 

Playfair  v.   Ilie  Birminghaiu,  Bristol  and  Tliames  Junction 

Riiilway  Company      ..  .  ..      40,291,373,374 

PontL't  I).  Basingstoke  Canal  Company       ..  .,  ..    252 

I'ooley,  Expaile    ..  ..  ..  ..  ..  ..        271 

Preston  u.  (jiiy on     ..  ..  ..  ..  ..  ..40 

Preston  v.  Tlie  Grand  Collier  Dock  Company  . .   40,  275,  288, 

289,  372,  373,  376,  377 
Priestley  «.  Foulds   ..  ..  ..  ..  ..  ..62 

Priestley  v.  The  Manchester  and  Leeds  Railway  Conipanv..88, 

94 
Provost,  &c.,  of  Eton  College,  Exparte       ..  ..  ..  232 

Ranger  v.  Great  Western  RaiKvay  Companv. .  139,  140,  142, 

143,  144,  171,  417,  419,  420 
Rastrick  u.  Lambert  ..  ..  ,.  ..  ..54 

Rede  «.  Farr         ..  ..  ..  ..  ..  ..  43 

Reg.  z).  Binjjhara 208,399 

Reg.  D.  Birmingham  and  Gloucester  Railway  Company ..  100, 

101,  105,  108,  179,  393,  397,  421,  4s!2 

Reg.  t;.  Bristol  Dock  Company       ..  ..  ..        151,388 

Reg.  V.  Bristol  and   Exeter  Railway  Company ..  116,  195,  393, 

394,  404 
Reg.  i;.  Bristol  and  Gloucester  Railway  Company         ..        196 
Re::.!;.  Brownlow    ..  ..  ••  ..  ..  ..    366 

Reg.  i;.  Committeemen  for  South  Holland   Drainage  ..   400 

Reg.  u.  Deptlbrd  Pier  Company  ..  ..  221,393 

Reg.  v.  Directors  of  Blackwall  Railway 39-i 

Reg.  v.  Eastern  Counties  Railw.iy  Company.. 64,  97,  149,  150, 
194,  195,  196,  211,  239,  365,  371,  389,  390.  391,  593, 

396,  397,  599 
Reg. C.Elmore  ..  ..  ..  ..  ..  ..   370 

Reg.  D.Giand  Junction  Railway  Company      155,  156,  157,  159, 

566 
Reg.  V.  Great  North  of  England  Railway  Company    ..  151 

Rfg.  I).  Great  Western  Railway  Company       ..  ..    156,364 

Reg.  V.  Ilolroyd  ..  ..  ..  ..  ..  344 

Reg.  u.  Hull  and  Selby  Railway  Company    ..  ..  ..    590 

Reg. t).  Lancaster  and  Preston  Junction  Railway  Company     403 
Reg. «;.  London  and  Bir(uinghani  Railway  Company  ..  lOj,  108, 

364 
Reg.  D.  London  and  Blackwall  Railway  Company  388,395,399 
Reg.  U.London  and  Greenwich  Railway  Company  ..  114,  115 
Reg.  1).  London  and  Southampton  Railway  Company  .  .181,  189, 

421 
Reg.  V.  London  and  South- Western  Railway  Company  ..  127, 

155,"  J  58,  299 


List  of  Cases.  xxiii 

PACK 

Reg.  V.  Mancliesler  and  Leeds  Railway  Company   91,  97,  196, 

397,399,  400,  401,  40ii 
Reg.  t).  Monmoutlisliire  Canal  Company  ..  ..  159 

Reg.  V.  Newcastle  and  Darlington  Railway  Company    ..      36.5 
Reg.  i;.  North  Midland  Railway  Company  .,  195,  395!,  393,  399 
Reg.  n.  Norlh  Union  Railway  Company  ..  195,  210,39.3,39.5 
Reg.  u.  NorwicI)  and  Brandon  Railway  Company  ..      3B8,  393 
Reg.  on  the  prosecution  of  the  Mayor,  &c.,  of  Maidenliead, 

V.  Great  Western  Railway  Company       ..  ..   73,  392 

Reg,  1).  Perkins      ..  ..  ..  .,  ..  ..       36.5 

Reg.  t!.  Polworth      . .  . .  . .  . .  . .  . .    '566 

Reg. V.Scott        104.105,181,422 

Reg. «;.  Sharpe  88,182 

Reg.   V.   Sheffield,    Ashton-under-Line,    and     Manchester 

Railway  Company  . .  ..  ..    196,  5i02,  403,  404 

Reg.  1).  Sheriff  of  Middlesex  211,399 

Reg.  j;.  Sheriff  of  Warwickshire  ..  ..  ..        227 

Reg.  V.  Stockdale  and  Darlinyton  Railway  Company      ..    364 
Reg.  i>.  Thames  Haven  Dock  and  Railway  Company  277 

Reg. «.  Thoroughgood         ..  ..  ..  ..  ..   370 

Reg.  i;.  Trustees  of  Swansea  Harbour  ..  ..  206,401 

Reg.  1'.  Victoria  Park  Compan\'    ..  ..  ..        154,277 

Reg.  i;.  West      ..  ..  ." 73,364 

Reg.  V.  York  and  North  Midland  Railwav  Company.  .365,389, 

399 

Rex  V.  Bell 7 

Rex  V.  Brecknock  and  Abergavenny  Canal  Company  . .        393 
Rex  t;.  Commissioners  for  improving  Market  Street,  Man- 
chester ..  ..  ..  ..  ..  .,        199 

Rex «;.  Evett  ..  ..  ..  ..  ..  ..    364 

Rex  r.  Fell  402 

Rex  y.  Gardner        ..  ..  ..  ..  ..  ..    227 

Rex  V.  Hungerford  Market  Company..  ,.  192,  199 

Rex  v.  Jollitfe  ..  ..  ..  ..  ..  .,       7 

Rex  V.  Justices  of  the  City  of  York        ..  ..  ..        228 

Rex  V.  Justices  of  West  Riding  of  Yorkshire. .       197,  402,  404 
Rex  t).  Leeds  and  Selby  Railway  Company  ..        120,  198 

Rex  t).  London  Dock  ('ompany       ..  ..  ..  ,.    196 

Rex  n.  Liverpool  and  Manchester  Railway  Com[)anv      ..    191 
Rex  V.  Masters  and  Wardens  of  Merchant  Taylors'  Com- 
pany        252 

Rex  i;.  Mayor,  &c.  of  Evesham       ..  ..  ..  ..   383 

Rex  D.  Medley      ..  ..  .,  ..  ..  .,        176 

Rex  v.  Morris  80,81,87,184 

Rex «.  Mott  ..  ..  ..  .,  ..  ..         53 

Rex  V.  Nottingham  Old  Waterworks..  192,  194,  204,  207,  2t>0, 

221 

Rex  V.  Pease 63,  184 

Rex  w.  Regent's  Canal  Company    ..  ..  ,,  ,.   421 


XX  iv  List  of  Cases. 

PAGE 

Rex  V.  Severn  and  Wye  Railway  Company      ..    152,  388,  389 
Rex  «.  Staiiiforlli  and  KeacJby  Canal  Company      ..  ..    209 

Rex  V.  Trustees  of  North  Leach  and  Witney  Roads      ..        252 
Rex  V.  Trustees  of  Norwich  and  Walton  Road      . .        "203,  401 
Rex  11.  Wilts  and  Berks  Canal  Company       ..  ..    25i,  393 

Rex  t).  Worcester  Canal  Company  ..  ,.  ..    249 

Rhodes,  In  re,  &c.  ..  ..  ..  ..  ..        22.5 

Richardson  i;.  Hast'ngs  ..  ..  ..  .,      S75,  ■i'>ii 

Richardson  r.  Larpent        ..  ..  ..  ..  373,376 

River  Dun  Navigation  Company  v.  North  Midland  Rail- 
way Company  ..  ..  ..        135,405,406,407 

Roberts  v.  Read 382 

Robertson  v.  Great  Western  Railway  Company.  .172,  214,  418 

Robins,  Exparte 304,389,390 

Robinson  «.  Peace    ..  ..  ..  ..  ..  ..   274 

Rogers  j;.  Holloway  ..  ..  ..  ..  ..        272 

Rouch  V.  Great  Western  Railway  Company   144,  145,  146,  176 
Rowe  K.  Shils(;n        ..  ..  ..  ..  ..  ..    302 

Rutley  t).  South  Eastern  Railway  Company      ..  ..       315 

Saint  Katherine's  Dock  Company,  in  re     ..  ..  ..   232 

Salmon  r.  Randall 129,130,131 

Scales  t).  Pickering  ..  ..  ..  ..  ..        64 

Scott  V.  Eastern  Counties  Railway  Company         ..  ..    169 

Seddon  D.  Conni-ll  ..  ..  ..  ..  ..        245 

Semple  v.  London  and    Birmingham   Railway  Company .  .175, 

178,  412,414,  415,  418 
Sharp  V.  Grey       . .  . .  . .  . .  . .  . .       323 

Sharpe  y.  Great  Western  Railway  Company  ..  ..    J70 

Shaw,  Exparte  ..  ..  ..  ..  ..  ..    224 

Siiaw  II.  Holland   ..  ..  ..  ..  ..  ..  50 

Sheffield,    Ashton-under-Lyne    and    Manchester    Railway 

Company   v.  Woodcock.  .234,  240,255,  281,   282.  285, 

292,  294,361 
SheflBeld    Canal    Company   v.   Sheffield    and    Rotheriiam 

Railway  Company  ..  •.  ..      165,168,231 

Simon  I;.  Fector       ..  ..  ..  ..  ..  ..55 

Sims  u.  Commercial  Railway  Company  ..  ..  199 

iSirhowy  Tramroad   Company   v.  Jones  and    Homfray   v. 

Jones ..  65,78 

Small  r.  Attwood 22 

Smith  V.  Birmingham  Gas  Company  ..  ..      72,  175 

Smith  t).  Golriswortliy     ..  ..  ..  ..        65,66,248 

Smith  «;.  London  and  Birmingham  Railway  Company       ..   316 

Smith  t).  Shaw 380 

Smith  u.  Stafford 274 

Society  of  Practical  Knowledge  t).  Abbott  ..         35,362 

South  Eastern  Railway  Company  u.  Hebblewhite  ..  353,  3.t4 
South  Eastern  Railway  Company  v.  Sprott       . .  . .       357 


List  of  Cases.  xxv 

PAGE 

Southampton  Dock  Company  v.  Richards.  .292,  351,  358,  359, 

S6<i 

Spencer,  Exparte       ..  .■ 270,27:2 

Spencer  D.  London  and   Birmingham  Railway  Company .  .104, 

408,  410,  418 
Stainbank  u.  Fernley  ••  ..  ••  ..  22,4123 

Stanley  1^.  Chester  and   Birkenhead    Railway  Company ..  163, 

166,  419 
Steigenberger  v.  Carr       ..  ..  ..  ..  ..  57 

Stephens  t;.  De  Medina         259,262 

Stephenson  n.  Rudge        ..  ..  .,  ..  ..  55 

Stewart  «.  Cauty  258,262,263 

Sione  V.   Commercial   Railway  Company ..  1 12,  113,  199,  200, 

203 
Storer  t).  Great  Western  Railway  Company    ..      123,172,417 
Storr  i;.  Crowley       ..  ..  ..  ..  ..  ..    308 

Stourbridge  Canal  Company  u.  Wheeley  ..  ..  62 

Stratford  and  Moreton  Railway  Company  v.  Stratton .  .65,  66, 

277,  293 
Syms  v.  Chaplin         ..  ..  ..  ..  ..      308,312 

Taylor,  Exparte  ..  ..  ..  ..  ..  229 

Taylor  J).  Ashton    ..  ..  ..  ..  ..  ..        23 

'I'a^lor  y.  Clemson         ..  ..  ..      76,77,201,205,218 

'I'aylor  D.  South  Eastern  Railway  Company  ..  ..    183 

Thames  Haven  Dock  and  Railway  Company  v.  Htli..72,  175, 

292,  352,  353,  356 
Thames  Haven  Dock  and   Railway  Company  i).  Rose..  72,  241, 

353 
Thames  Tunnel  Corapany  v.  Sheldon  . .  . .  . .    28() 

Thicknesse  v.  Lancaster  Canal  Company ..  l'J9,  132,  I8.i,  188, 

197,392 

Thorpe  w.  Hughes  279,372,373 

Tilson  V.  Warwick  Gas  Light  Company      ••  ..  ..    371 

Todd  V.  London  and  South  Western  Railway  Company  ..    160 
Toralinson  v.  Manchester  and   Birmingham  Railway  Com- 

pany  167,172,173 

Tottie  t).  Allen        ..  ..  ..  ..  .,  ..       54 

Tower  V.  Eastern  Counties  Railway  Corapany  . .   340,  409 

TraflFord,  Exparte  231 

Trustees  of  John  Addey's  Charity,  Exparte  ..  ..   226 

Turner,  Exparte    ..  ..  ..  ..  ..  ..        227 

Turner  v.  Sheffield  and  Rotlierham  Railway  Company..  63,  180, 

192,  296,  377 
Tyrrell  t>.  Woolley .,    246 

Vallance,  Exparte             ..           ..           ..  ..           ..        v70 

Vauxhall  Bridge  Company  D.  Earl  Spencer  ..           ..      58 

Vignoles  v.  Lefroy            . .          . .          . .  . .          . .   54,  56 

b 


xxvi  List  of  Cases. 

PAGE 

Wainwright  r.  Ramsdeii      ..  ..  ..  ..  ..    190 

Waithnian,  Expaite  ..  ..  ..  ..  ..         271 

Walker  v.  Londun  and  Blackwall  Railway  Company .  .114, 115, 

209,  210 
Walker  v.  London  and  South-Western  Railway  Company 

305,  315 

Wailworth  i;.  Holt 375 

Warburton  and  others  v.  London  and  Blackwall  Railway 

Company,.  ..  181,412,414 

Ward  I'.  Society  of  Aitornies  ..  ..  ..      248,372 

Ware  u.  Grand  Junction  Waterworks       ..  ..  153,372 

Watkins,  Exparte 270 

Watkins  «.  Huuiley  ..  ..  ..  ..  ..  49 

Webb  V.   Manchester   and   Leeds  Railway  Company .  .64,  86, 

87,  405 
West  London  Railway  Company  v.  Bernard  ..      294,  362 

Wheldal  y.  Northern  and  Eastern  Railway  Company      ..      184 

Whitehead  J'.  Barron  ..  ..         * 23 

Whitnall  v.  Manchester  and  Leeds  Railway  Company    ..      322 
Wilkinson  u.  Lloyd        ..  ..  ..  ..  ..      46,48 

Wilson  t).  Anderson  ..  ..  ..  ..  ..  8 

Wilson  D.  Wilson  242 

Wolseley  j;.  Cox     ..  ..  ..  ..  ..  ..      266 

Wood  t).  The  Duke  of  Argyle     ..  ..  ..  ..23,57 

Wyrley  and  Essington  Navigation  Company  v.  Bradley        120 

Yarborough  v.  Bank  of  England 72, 174,  175 

Young  D,  Smith  ..  ..  ..  ..  ..  ..52 


(     xxvii     ) 


ERRATA   ET  ADDENDA. 


Page  37,  last  line  but  one  and  last  line,  for  "  no  railway  bill 
shall  be  read  a  third  time  unless,"  read  "  in  case  of  application 
to  parliament  for  powers  to  construct  a  railway." 

Page  38,  first  line,  before  "  have  been,"  insert  "must." 

Appendix,  page  ccxxxii,  n.  (g),  for  "  ccxxx,"  read  "  ccxxvi." 

Appendix,  p,  cclxxviii,  line  10,  et  seq. — The  rule  here  laid 
down  is  not,  it  is  believed,  generally  observed  in  practice,  except 
as  regards  the  copies  of  the  printed  and  amended  breviates,  which 
are  left  by  the  agents  at  the  Board  of  Trade. 

Votes,  <Sfc.  of  Commons,  \6th  February,  1846. 

That  it  be  an  instruction  to  the  select  committee  on  petitions 
for  private  bills,  and  to  all  committees  upon  private  bills,  not  to 
hear  parties  on  any  petition  hereafter  referred  to  them,  which 
shall  not  be  prepared  and  signed  in  strict  comformity  with  the 
rules  and  orders  of  this  house.     {Vide  Standing  Orders,  Ilia.) 

Votes,  6fc.  of  Commons,  \lth  February,  1846. 

Harbours,  Docks,  &c. — Ordered,  That  all  bills  for  the  for- 
mation or  improvement  of  harbours  and  wet  docks,  navigable 
rivers,  and  canals,  and  works  of  every  kind,  on  lands  withia 
high  water  mark,  be  referred  to  the  Board  of  Admiralty  for  their 
report  thereon,  before  the  committee  on  the  bill  shall  report  to 
the  house. 

Minutes,  S;c.  of  Lords,  March  19,  1846. 

The  following  resolution,  viz.,  "  That  no  petition  praying  to 
be  heard  upon  the  merits  against  any  second  class  railway  bill 
shall  be  received  by  the  House  of  Lords,  unless  the  same  be 
presented  on  or  before  the  day  on  which  such  bill  shall  be 
read  a  second  time,"  was  considered  ("according  to  order)  and 
agreed  to,  and  ordered  to  be  added  to  the  roll  of  Standing  Orders. 


xxviii  Errata  et  Addenda. 

Minutes,  &ic.  of  Lords,  March  23,  1846. 

The  following  Standing  Order,  viz  ,  "  That  a  copy  of  every 
railway  bill  as  proposed  to  be  amended  in  the  committee  shall 
be  deposited  at  the  Board  of  Trade  two  days  before  the  same 
shall  be  reported  to  the  house,  and  also  a  copy  of  every  bill 
as  amended  in  the  committee  shall  be  deposited  at  the  Board  of 
Trade  two  days  before  the  same  shall  be  read  a  third  time  in  the 
house,"  was  considered  (according  to  order)  and  amended. 

The  following,  it  is  believed,  is  the  form  of  the  oider  as 
amended  : — 

"  That  a  copy  of  every  railway  bill  as  amended  in  the  com- 
mittee shall  be  deposited  at  the  Board  of  Trade  three  days  before 
the  same  is  read  a  third  time  in  the  house." 

Votes,  S;c.  of  Commons,  2d  April,  1846. 

Ratt.way  Bii.i.s~ Ordered,  That  every  committee  on  a  rail- 
way bill  shall  fix  the  toll=.  and  shall  determine  the  maximum 
rates  of  charge  for  the  conveyance  of  passengers  (with  a  due 
amount  of  luggage)  and  of  goods  on  such  railway,  and  such 
rates  of  charge  shall  include  the  tolls,  and  the  costs  of  locomo- 
tive power  and  every  other  expense  connected  with  the  con- 
veyance of  passengers  (with  a  due  amount  of  luggage)  and 
of  goods  upon  such  railway;  but  if  the  committee  shall  not 
deem  it  expedient  to  determine  such  maximum  rates  of  charge, 
a  special  report,  explanatory  of  the  grounds  of  their  omitting 
so  to  do,  shall  be  made  to  the  house,  which  special  report 
shall  accompany  the  report  of  the  bill. 

Ordered,  that  the  following  clause  be  inserted  in  all  railway 
bills  passing  through  this  house  : 

"  And  be  it  further  enacted,  That  nothing  herein  contained  shall 
be  deemed  or  construed  to  exempt  the  railway  by  this  or  the  said 
recited  acts  authorized  to  be  made  from  the  provisions  of  any 
general  act  relating  to  such  bills,  or  of  any  general  act  relating 
to  railways,  which  may  hereafter  pass  during  this  or  any  future 
session  of  parliament,  or  from  any  future  revision  and  alteration, 
under  the  authority  of  parliament,  of  the  maximum  rates  of 
fares  and  charges  authorized  by  this  act." 

Votes,  (5fc.  of  Commons,  April  3,  1846. 

74.  Standing  Orders.— Standing  Order  No.  135  lead  and 
repea led. 

Resolved,  That  seven  clear  days'  notice,  and  in  the  case  of  a 
re-committed  bill  three  clear  days'  notice,  in  writing,  be  given  by 
the  clerk  to  the  Committee  of  Selection  to  the  clerks  in  the  Pri- 
vate Bill  Office,  of  the  day  and  hour  appointed  for  the  meeting  of 
the  committee  on  every  private  bill  ;  and  that  all  the  proceedings 
of  any  committee  of  which  such  notice  shall  not  have  been  given 
shall  be  void. 


SUMMARY 


LAW  RELATING  TO  RAILWAYS. 


INTRODUCTION. 
Of  the  Different  Kinds  of  Railways. 

1.  It  is  proposed  in  the  present  treatise  to  consider 
the  legal  characteristics  of  railways.  As  these  mainly 
depend  on  the  nature  of  the  power  or  authority, 
under  or  by  virtue  of  which  a  railway  is  constructed, 
it  may  be  proper  to  look  at  our  subject  in  this  point 
of  view.  So  regarded,  railways  are  distinguishable 
into  two  classes;  1st,  railways  at  common  law; 
and  2dly,  railways  constructed  under  the  authority 
of  acts  of  parliament. 

The  former  species  of  railway  again  subdivides 
itself  into  two,  viz.  1st,  a  simple  rail  or  tram  way, 
made  by  the  owner  of  property  on  his  own  land  for 
its  more  convenient  use  and  occupation,  or  by  several 
owners  of  co-terminous  property,  in  pursuance  of 
some  mutual  arrangement  for  that  purpose  between 
themselves ;  and  2d,  a  tram  or  railway  constructed 
under  a  way  leave,  or  grant,  or  right  of  way. 

B 


LIB.  I. 

OF  RAILWAYS  AT  COMMON  LAW. 

CAP.  I. 

Of  Railways  made  by  Owner  of  Soil  on  his  own 
Ground. 

2.  A  railway  constructed  by  a  private  individual 
on  his  own  ground,  in  its  legal  character,  differs  in 
nothing  from  an  ordinary  occupation  road ;  the  in- 
cidents therefore  of  such  railway  must,  it  is  con- 
ceived, be  the  same,  save  that  in  the  use  of  it 
greater  caution  may  be  requisite  under  some  cir- 
cumstances to  guard  against  injury  to  the  life  or 
property  of  others. 

3.  A  covenant  by  an  owner  of  adjoining  property 
to  make  exclusive  use  of  a  railway  so  constructed, 
paying  a  certain  toll,  is  not,  it  seems,  a  covenant 
that  runs  with  the  land,  or  is  binding  on  the  assignee 
of  such  property,  even  though  the  covenant  ex- 
pressly purport  to  bind  "  assigns  "  ;  (a)  but  as  be- 
tween the  lessor  and  lessee  of  land  intended  to  form 
a  railway  it  is  otherwise.  (6)  A  lessee  of  a  colliery 
agreed  with  a  neighbouring  landowner  for  the  lease 
of  land  to  form  a  railway,  covenanting  at  the  same 
time  for  himself,  &c.  and  his  assigns,  to  carry  over 
the  intended  railway  all  coals  gotten  from  such  col- 
liery, or  from  any  other  mines  in  the  same  township, 

(a)  See  the  case  of  Keppell  v.  Bailey,  2  My.  6c  K.  517. 
(fa)  Hemmiiigway  v,   Fernandez,  21   Law  Journ.  Ch.  130; 
S.C.  13  Sim.  228. 


Railways  made  in  pursuance  of  Way  Leave.       ?> 

paying  so  much  per  ton ;  this  was  held  to  be  a 
covenant  that  ran  with  the  land,  and  bound  the 
assignees  of  the  interest  in  the  agreement,  (c) 

4.  Where  a  railway  is  constructed  by  several 
owners  of  adjoining  property  in  pursuance  of  some 
arrangement  to  that  effect,  a  distinction  it  seems 
must  be  taken  according  as  the  agreement  is  under 
seal  or  not.  In  the  former  case  it  would  seem  to 
amount  to  a  grant  by  each  party  to  the  agreement, 
to  the  others,  of  a  right  of  way  over  the  former's 
soil ;  and  then  the  railway  constructed  under  it 
would  fall  under  the  second  class  of  railways  de- 
scribed in  the  next  chapter :  in  the  latter  case  no 
one  of  the  contracting  parties  would,  it  is  conceived, 
acquire  any  legal  interest  in  the  soil  of  any  of  the 
others,  but  the  whole  would  rest  in  agreement  only. 


CAP.  II. 

Of  Raihvays  made  in  pursuance  of  Way  Leaves,  c^-c. 

I.  Nature  and  Extent  of  Power  given  by  Way  Leave. 
II.  Rights  and  Liabilities  of  Owner  of  Railway  constructed 

under  Way  Leave. 
III.  Remedies  relating  to  such  Railways. 

5.  I.  Way  leaves,  or  powers  of  granting  rights 
of  way  over  lands  sold  or  demised,  as  easements 
reserved  to  grantors  or  lessors,  are  a  species  of 
property  well  known  in  the  north  of  England,  and 
often  of  great  value  and  importance.  The  nature 
and  extent  of  any  such  power,  and  what  it  autho- 
rizes the  lessor,  &c.  or  his  assignee  to  do,  (which  is 

(c)   JJemminguay  v.  Fernandez,  ubi  supra. 
B  2 


4  Railways  at  Common  Law. 

obviously  the  substantial  question  that  we  have 
here  to  consider,)  must  of  course  depend  on  the 
particular  terms  of  the  reservation  in  each  case. 
The  reservation,  for  instance,  may  be  couched  in 
such  language,  as  to  vest  in  the  lessor,  &c.  an  un- 
limited power  of  granting  way  leaves  over  all  or 
any  part  of  the  lands  demised,  &c.  without  any  re- 
striction whatever  as  to  the  uses  to  which  the  way 
should  be  applied  ;  or  it  may  restrict  the  power  to  a 
particular  purpose  only,  and  that  of  a  more  or  less 
limited  character.  To  determine  accordingly  what 
a  way  leave  authorizes  in  any  particular  case,  whe- 
ther, for  instance,  it  confers  a  power  of  constructing 
a  railway  at  all,  and,  if  so,  one  of  what  kind,  in 
what  direction,  to  what  extent  and  for  what  pur- 
poses, we  must  look  at  the  terms  of  the  reservation, 
and  consider  what  is  the  fair  and  reasonable  import 
of  those  terms,  {d) 

6.  In  a  deed  of  the  date  of  1630  the  reservation 
was  "  of  all  mines  of  coal  in  A.,  together  with  suffi- 
cient way  leave  and  stay  leave  to  and  from  the  said 
mines,  &c. ;"  all  that  it  was  held  to  authorize  was 
the  making  of  a  railway  in  such  a  direction,  and  of 
such  construction  as  was  reasonably  sufficient  for 
the  purpose  of  getting  the  coals  reserved,  (e) 

7.  The  plaintiff,  it  is  to  be  observed,  in  the  above 
case  was  precluded  by  the  form  of  his  pleading  from 
contending  that  some  species  of  railway  was  not 

(rf)  Dm^d  V.  Kingscote,  6  M.  &  W.  174 ;  S.  C.  2  Railway  Cas. 
27  ;  Durham  and  Sunderland  Railivay  Company  v.  Walker,  2 
Gale  &  D.  326  ;  S.  C.  2  A.  &  E.  N.  S.  940  ;  3  Railw.  Cas.  36 ; 
Farrow  v.  Vamittart,  1  Railw.  Cas.  602  ;  Barnard  v.  Wallis, 
2  Railw.  Cas.  162  ;  S.C.I  Cr.  &  Ph.  85 ;  5  Jur.  813. 

(e)  Dand  v.  Kivgscote,  ubi  supra. 


Railways  made  in  pursuance  of  Way  Leave.       5 

proper  and  convenient  under  the  terms  of  the  reser- 
vation. Had  he  heen  in  a  position  to  raise  the  ques- 
tion, its  determination,  it  is  conceived,  (considering 
the  obvious  purpose  of  a  reservation  such  as  that 
in  question,)  must  have  rested  on  much  the  same 
grounds  as  that  actually  before  the  court ;  viz. 
whether,  under  all  the  circumstances  of  the  case,  a 
railway  of  some  sort  was  not  fairly  requisite  for  the 
working  of  the  coal  in  question  in  a  reasonably  bene- 
ficial manner. 

8.  So  where  the  reservation  was  amongst  other 
things  "  of  all  the  mines  under  certain  demised  lands, 
together  with  power  to  dig,  win,  and  carry  away  the 
same,  with  free  ingress,  egress,  and  regress,  way 
leave,  and  passage  to  and  from  the  same,  or  to  or 
from  any  other  mines,  lands,  and  grounds,  on  foot, 
and  on  horseback,  and  with  carts  and  all  manner  of 
carriages,  and  also  all  necessary  and  convenient 
passages,  conveniences,  privileges,  and  powers  what- 
soever for  the  purposes  aforesaid,  and  particularly 
of  laying,  making,  and  granting  waggon  ways  in  and 
over  such  lands  &c. ;"  the  only  right  reserved  to  the 
lessors  under  the  above  clause  was  held  to  be  that 
of  making  and  granting  the  right  of  making  such 
ways  over  the  demised  lands  as  were  proper  for  the 
purpose  of  getting  the  excepted  mines  &c.,  and 
consequently  that  they  could  neither  make  them- 
selves, nor  authorize  any  one  else  to  make,  a  rail- 
way for  the  conveyance  of  goods  and  merchandize 
generally.  (/) 

9.  From  this  latter  case  it  may  be  gathered,  that 

(f)  Durham  and  SniiderUind  Railway  Compriny  V.  Walker, 
ubi  supra. 


()  Railways  at  Common  Lam. 

to  give  an  unlimited  way  leave,  it  must  be  reserved 
or  excepted  as  a  distinct  matter  of  reservation  or 
exception,  and  not  simply  mentioned  in  connection 
with  some  previous  matter  of  exception  ;  other- 
wise the  fair  conclusion  is,  that  it  is  meant  to  be 
confined  to  the  single  object  of  getting  the  matters 
excepted. 

10.  As  the  manifest  object  of  such  a  reservation 
is  to  enable  the  owner  of  the  thing  excepted  to  get 
it  beneficially  to  himself,  and  therefore  what  passes 
under  it  must  necessarily  be  a  right  to  such  a  de- 
scription of  road,  as  may  be  reasonably  sufficient 
to  enable  the  owner  to  do  so  from  time  to  time  ;  it 
would  seem  to  follow  that  a  railway,  if  it  answers 
this  description,  may  be  taken  to  fall  within  the 
scope  of  such  a  reservation,  although  no  such  spe- 
cies of  way  were  in  use  at  the  time  of  the  grant  &c., 
or  were  expressly  mentioned  in  the  terms  of  the  re- 
servation. 

11.  The  right  of  making  a  railway  over  the  soil 
of  another  may  be  claimed  not  simply  by  way  of  an 
express  reservation,  but  likewise  as  an  easement 
appurtenant  to  land  by  virtue  of  twenty  years'  en- 
joyment of  the  same,  or  as  something  necessary 
for  the  convenient  occupation  of  adjoining  closes. 
To  justify  the  making  of  a  railway  on  the  latter 
ground,  a  party  must  of  course  be  prepared  to  esta- 
blish that  the  railway  is  necessary  for  the  proper 
enjoyment  and  occupation  of  his  property  on  each 
side  of  that  which  he  crosses,  (g-)  And  he  must  take 
care  not  to  carry  the  use  of  it  beyond  that  purpose. 

(ff)  Monmouth  Canal  Comjiany  \:  Harford,  1  C.  M.  iN;  R. 
614. 


Railways  made  in  pursuance  of  Way  Leave.       7 

To  support  such  a  claim  on  the  former  ground, 
twenty  years'  uninterrupted  enjoyment  of  the  ease- 
ment as  of  right  must  be  shown ;  it  may  therefore 
be  defeated  by  proof  on  the  other  side  of  such  en- 
joyment being  only  permissive.  (A) 

12.  II.  It  is  proposed  in  the  next  place  to  speak 
of  the  rights  and  liabilities  of  an  owner  of  a  raibvaij 
over  the  land  of  another.  He  is  of  course  liable 
for  any  injury  that  may  be  occasioned  by  the  im- 
proper construction  or  use  of  such  railway  to  the 
adjoining  property  :  on  the  other  hand,  for  any  dis- 
turbance of  the  traffic  on  such  railway,  he  would 
seem  entitled  to  the  like  remedies  as  the  owner  of 
an  ordinary  easement. 

13.  A  grantee  of  an  easement  of  this  kind  may  take 
such  exclusive  occupation  of  the  soil,  as  to  subject 
himself  to  the  burthens  incident  to  the  character  of 
occupier.  As  where  a  party  took  a  lease  of  way 
leaves,  with  a  liberty  of  erecting  bridges,  levelling 
hills  &c.,  and  in  pursuance  of  the  powers  thus 
acquired  made  an  inclosed  waggon  way,  («)  ex- 
cluding all  other  persons,  erected  bridges  and  built 
two  houses  on  the  land  for  his  servants  ;  it  was  held 
that  he  was  liable  to  be  rated  to  the  poor  for  "  the 
ground  called  the  waggon  v\|ly  "  Where  there  is 
not  this  exclusive  occupation  the  party  is  not  liable  : 
because  what  he  has  is  a  mere  easement,  that  is  not 
the  subject  of  rate,  {k) 

14.  Where  upon  a  grant  of  a  way  leave  over  land 
under  demise,  in  addition  to  a  way  leave  rent,  there 
is  likewise  a  certain  sum  per  acre  reserved  under  a 

{h)  See  ante,  p.  f),  n.  (e).         {k)  Rex  v.  JoUiffe,  2  T.  R.  90. 
(i)  Rex  V.  Bell,  7  T.  R.  598. 


8  Railways  at  Common  Law. 

covenant  to  that  effect,  as  tenant's  damage,  for  the 
land  occupied  by  the  railway,  and  such  sum  is  made 
payable  by  the  covenant  to  the  ovrner  of  the  land, 
or  his  lessees  or  tenants  ;  the  question,  to  whom  the 
money  ought  to  be  paid,  whether  to  the  landlord  or 
tenant,  seems  to  depend  on  this,  whether  the  land 
is  or  is  not  severed  from  the  farm,  (k)  That,  if  not 
expressly  provided  for  by  some  agreement  between 
the  parties,  must  be  a  question  for  the  jury  to  de- 
termine, (k) 

15.  III.  It  is  proposed  to  speak  of  the  respective 
remedies  of  the  owners  of  the  soil,  and  the  grantee 
of  the  way  leave.  And  herein  first  of  the  remedies 
at  law.  If  the  grantee  of  the  way  leave  go  beyond 
the  authority  given  by  the  way  leave,  he  thereby 
subjects  himself  to  an  action  at  the  suit  of  the  grantor. 
But  where  a  railway  constructed  under  a  way  leave 
is  such,  as  the  grantee  of  the  way  leave  is  warranted 
in  making  for  the  purpose,  for  which  when  made  he 
may  lawfully  use  it,  the  reversioner  of  the  land  tra- 
versed by  the  railway  cannot  have  an  action  against 
the  grantee  simply  on  the  ground  of  his  intention  to 
use  it  for  other  purposes,  for  whieh  he  has  no  right 
to  use  it ;  though,  if  the  latter  afterwards  put  in 
execution  this  unwarranted  use  of  the  railway,  he 
may  thereby  subject  himself  to  an  action  of  tres- 
pass at  the  suit  of  the  tenant.  (/) 

16.  Secondly,  of  the  remedies  in  equity.  Where 
the  construction  of  a  way  leave  is  doubtful,  and  the 
grantee  attempts  under  colour  of  it  to  do  what  it 

(fc)   Wilson  V.  Anderson,  1  Car.  &  K.  544. 
(/)  Durham    and    Sunderland  Ruilwaii  Company  v.  Walker, 
^ibi  supra. 


Railways  made  in  'pursuance  of  Way  Leave.       9 

may  prove  ultimately  not  to  warrant,  and  what  is 
calculated  at  any  rate  to  work  grievous  injury  to  the 
land,  the  landowner  has  a  right  to  have  his  property 
protected  until  the  precise  eftect  of  the  reservation 
can  be  ascertained  by  the  decision  of  a  court  of  law, 
and  may  accordingly  apply  to  a  court  of  equity  to 
grant  an  injunction  for  tliis  purpose. (?«)  It  is  usually, 
however,  it  is  to  be  remarked,  made  a  condition  of 
granting  an  injunction  under  such  circumstances 
that  the  plaintiff  should  proceed  to  a  trial  of  the 
question  at  law  at  the  earliest  possible  opportu- 
nity, (n) 

17.  To  entitle  himself  to  the  interposition  of  a 
court  of  equity  by  way  of  injunction,  a  party  must 
take  care  to  make  his  application  in  due  time  ;  as  the 
court  may  refuse  to  interfere  where  there  has  been 
laches  or  acquiescence  in  the  proceedings  of  the 
undertakers- 
Such  an  application  must  moreover  be  made  while 
the  undertaking  is  still  in  progress  ;  since  as  soon 
as  it  is  complete  the  undertakers  are  beyond  the 
reach  of  an  injunction,  and  this  whatever  be  the 
means  by  which  they  have  succeeded  in  bringing 
their  work  to  completion.  Thus  it  has  been  held 
that  there  is  no  equity  to  restrain  by  injunction  the 
owners  of  a  railroad,  made  over  the  plaintiff's  land, 
from  using  the  railroad  after  it  has  been  completed, 
or  from  interrupting  the  plaintiff's  workmen  in  re- 
moving it  and  restoring  the  land  to  its  original  state, 
although  the  possession  of  the  land  for  the  purpose 
of  constructing    the   railroad  may  have  been   ob- 

(m)  Farrow  v.  Vansiltart  and  others,  1  Railw.  Cas.  602. 
(n)  Ibid. 

B  5 


10  Railways  at  Common  Lam. 

tained  from  a  tenant  of  the  plaintiff  by  means  of 
circumvention  and  fraud,  (o) 

1 8.  A  party  may  it  seems  carry  his  acquiescence  to 
such  a  height  as  even  to  preclude  himself  altogether 
from  taking  advantage  of  his  legal  rights  in  regard 
of  the  reservation,  whatever  those  rights  may  be ; 
as,  for  instance,  if,  with  a  full  knowledge  of  his 
legal  rights  and  of  the  plans  and  intentions  of  the 
undertakers  for  their  invasion,  he  lets  them  go  on 
and  lay  out  money  and  complete  their  works  with- 
out making  any  opposition,  or  agrees  to  permit  the 
scheme  to  be  carried  out,  or  even  to  assist  and  pro- 
mote it.  (p)  But  where  the  equitable  grounds  are 
not  thus  clear  and  decisive,  as  where  the  landowner 
has  not  this  knowledge  either  of  his  own  position  or 
of  the  projects  of  the  other  side,  there  a  court  of 
equity  would  not,  it  seems,  interfere  to  enjoin  the 
former's  legal  rights,  but  would  leave  the  parties  to 
contest  their  rights  at  law  in  the  first  instance,  {q) 
In  general  a  party  seeking  the  aid  of  a  court  of 
equity  on  grounds  of  the  above  nature,  in  opposition 
to  an  admitted  legal  right,  must,  in  order  to  obtain 
it,  give  judgment  in  the  action,  or  if  he  wishes  to 
go  on  and  defend  the  action,  he  must  postpone  his 
application  in  equity  until  after  the  result  of  the  trial 
at  law.  (a) 

(o)  Deere  v.  Guest,  1  My.  &  C.  516. 

(p)  Barnard  v.  Wallis,  2  Railw.  Cas.  162,  judgment  of  the 
Master  of  the  Soils,  S.  C.  I  Cr  &  Ph.  85 
(q)  Ibid. 


(    n    ) 


LIB.  II. 

OF  RAILWAYS  BY  STATUTE. 

CAP.  I. 

OF  THE  PROVISIONAL  FORMATION  OF  A  COMPANY  PRE- 
VIOUS TO  AN  ACT  OF  PARLIAMENT,  AND  OF  THE 
POWERS,  DUTIES,  RIGHTS  AND  LIABILITIES  GROWING 
THEREOUT. 

1. — Of  the  Provisional  Formation  of  a  Company  for  the  making 

of  a  Railway. 
2. — Of  the  Powers,  Privileges  and  Incapacities  of  a  Company 

for  the  making  of  a  Railway  in  its  Provisional  State. 
3. — Of  the  Duties  of  such  Company,  and  herein  more  particularly 

of  the  Steps  preliminary  to  and  of  the  obtaining  the  Act 

of  Parliament. 
4. — Of  the  Rights  and  Liabilities  growing  out  of  the  above  State 

of  Things. 


Sect.  1.  —  Of  the  Provisional  Formation  of  a  Company 
for  the  making  of  a  Railway. 

19.  Where  parties  propose  to  construct  a  railway, 
and  by  consequence  to  apply  to  parliament  for  a 
grant  of  the  necessary  powers,  there  are  three  things 
mainly  important  for  them  to  attend  to  :  1st.  To 
comply  with  the  requisitions  of  the  recent  act  for 
the  registration,  &c,  of  joint  stock  companies,  so  far 
as  they  are  applicable  to  companies  for  the  making 
of  railways;  2ndly.  To  procure  the  necessary  sub- 


12  Railways  by  Statute. 

scriptions,  and  to  establish  such  arrangements  among 
the  subscribers,  as  may  provide  for  a  due  contri- 
bution towards  the  expenses  at  all  events,  whether 
the  project  succeed  or  not,  and  also  for  the  conduct 
and  management  of  the  undertaking  till  an  act  is 
procured ;  and  Srdly.  To  comply  with  the  regu- 
lations which  are  adopted  by  parliament  on  appli- 
cation for  bills  of  this  nature. 

20.  I.  Of  the  registration  of  a  company  for  the 
making  of  a  railway,  and  herein,  1st,  of  provisional 
registration. 

Before,  however,  adverting  to  the  immediate 
head  of  our  inquiry,  there  is  a  preliminary  question, 
that  it  may  be  proper  briefly  to  notice,  viz.  how  far 
companies  for  the  formation  of  railways  in  foreign 
states,  or  in  the  colonies,  fall  within  the  provisions 
of  the  above  act.  The  true  test  then  of  the  appli- 
cability of  the  act  to  such  companies  would  seem 
to  be,  to  consider  whether  it  is  intended  by  the  pro- 
jectors that  the  legal  relation  of  partnership  between 
the  subscribers  should  be  formed,  and  the  govern- 
ment and  administration  of  the  company's  affairs, 
as  a  company,  be  transacted  here  or  abroad?  In 
the  former  case,  the  company  must  be  deemed  to  be 
substantially  an  English  company,  and  consequently 
to  fall  within  the  provisions  of  the  act;  in  the  latter 
not.  It  follows,  consequently,  that  even  though  a 
company  have  an  office  and  place  of  business  in  this 
country,  and  a  branch  committee  established  here 
for  the  purpose  of  allotting  shares,  receiving  de- 
posits &c.,  still  it  is  not  within  the  act,  if  it  origi- 
nates abroad,  and  the  management  of  its  concerns 
is  substantially  carried  on    there,  the  branch  com- 


Provisional  Formation  of  a  Company.  13 

mittee  here  in  such  case  being  the  mere  agents 
of,  and  acting  in  subordination  to,  the  foreign  di- 
rectors, (a) 

(a)  The  enactment,  on  which  rests  the  determination  of  the 
above  question,  is  as  follows  : — 

"  And  be  it  enacted,  that  this  act  shall  apply  to  every  joint 
stock  company,  as  hereinafter  defined,  edahlhhed  in  any  part  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  except  Scot- 
land, or  established  in  Scotland  and  having  an  office  or  place  of 
business  in  any  other  part  of  the  United  Kingdom,  for  any  com- 
mercial purpose,  or  for  any  purpose  of  profit,  or  for  the  purpose 
of  assurance  or  insurance  (except  banking  companies,  schools, 
and  scientific  and  literary  institutions,  and  also  friendly  societies, 
loan  societies,  and  benefit  building  societies,  respectively  duly 
certified  and  enrolled  under  the  statutes  in  force  respecting  such 
societies,  other  than  such  friendly  societies  as  grant  assurances 
on  lives  to  the  extent  hereinafter  specified) ;  and  that  the  term 
"  joint  stock  company"  shall  comprehend — 

Every  partnership  whereof  the  capital  is  divided  or  agreed  to 
be  divided  into  shares,  and  so  as  to  be  transferable  without 
the  express  consent  of  all  the  copartners  ;  and  also. 
Every  assurance  company  or  association  for  the  purpose  of 
assurance  or  insurance  on  lives,  or  against  any  contingency 
involving  the  duration  of  human  life,  or  against  the  risk  of 
loss  or  damage  by  fire,  or  by  storm  or  other  casualty,  or 
against  the  risk  of  loss  or  damage  by  fire,  or  by  storm  or 
other  casualty,  or  against  the  risk  of  loss  or  damage  to 
ships  at  sea  or  on  voyage,  or  to  their  cargoes,  or  for  grant- 
ing or  purchasing  annuities  on  lives;  and  also  every  insti- 
tution enrolled  under  any  of  the  acts  of  parliament  relating 
to  friendly  societies,  which  institution  shall  make  assur- 
ances on  lives  or  against  any  contingency  involving  the 
duration  of  human  life  to  an  extent  upon  one  life  or  for 
any  one  person  to  an  amount  exceeding  two  hundred 
pounds,  whether  such  companies,  societies,  or  institutions 
shall  be  joint  stock  companies  or  mutual  assurance  societies, 
or  both  ;  and  also. 


14  Railways  by  Statute. 

21.  To  return  then  to  the  question  originally  pro- 
posed for  consideration,  in  order  to  procure  them- 
selves to  be  registered  pursuant  to  the  recent  statute 
(7  &  8  Vict.  c.  110),  for  the  registration  of  joint 
stock  companies,  the  promoters,  before  taking  any 
steps  to  make  their  scheme  public,  must  make  cer- 
tain returns  to  the  office  for  the  registration  of  joint 

Every  partnership  which  at  its  formation,  or  by  subsequent 
admission  (except  any  admission  subsequent  on  devolution 
or  other  act  in  law),  shall  consist  of  more  than  twenty- five 
members  : 
And  that,  except  where  the  provisions  of  this  act  are  expressly 
applied  to  partnerships  existing  before  the  said  first  day  of  No- 
vember, it  shall  be  held  to  apply  only  to  partnerships  the  forma- 
tion of  which  shall  be  commenced  after  that  date  :  provided 
nevertheless,  that,  except  as  hereinafter  specially  provided,  this 
act  shall  not  extend  to  any  company  for  executing  any  bridge, 
road,  cut,  canal,  reservoir,  aqueduct,  waterwork,  navigation, 
tunnel,  archway,  railway,  pier,  port,  harbour,  ferry  or  dock, 
which  cannot  be  carried  into  execution  without  obtaining  the 
authority  of  parliament :  provided  also,  that,  except  as  herein- 
after is  specially  provided,  this  act  shall  not  extend  to  any  com- 
pany incorporated  or  which  may  be  hereafter  incorporated  by 
statute  or  charter,  nor  to  any  company  authorized  or  which  may 
be  hereafter  authorized  by  statute  or  letters  patent  to  sue  and 
be  sued  in  the  name  of  some  officer  or  person." 

Looking  at  the  provisions  of  the  above  section,  the  question 
would  seem  to  turn  mainly  on  the  meaning  to  be  attributed  to 
the  term  "  established."  Now  this  term  cannot,  it  should 
seem,  be  construed  to  have  reference  exclusively  either  to  the 
first  formation  of  the  company,  (that  is,  in  other  words,  the  for- 
mation of  the  legal  relation  of  partnership  between  the  sub- 
scribers), or  to  the  conduct  and  management  of  its  business,  but 
includes  both  notions.  (See  9  Jurist,  p.  225,  and  p.  239  ; 
Lewis's  Liabilities  of  Subscribers,  &c.,  pp.  77,  78  ;  Words- 
worth's Joint  Stock  Companies,  pp.  7,  8,  5th  ed.) 


Provisional  Formation  of'  a  Company.  1 5 

stock  companies.  (6)     Those  returns  must  embody 
the  following  particulars  : — 

"  1.  The  proposed  name  of  the  intended  com- 
pany ;  and  also, 

2.  The  business  or  purpose  of  the  company; 

and  also, 

3.  The  names  of  its  promoters,  together  with 

their  respective  occupations,  places  of  bu- 
siness (if  any),  and  places  of  residence." 
Also,  either  before  or  after  the  scheme  is  made 
public,  the  following  particulars  must  be  returned 
when  and  as  they  are  from  time  to  time  decided  on. 
"  4.  The  name  of  the   street,    square,   or  other 
place   in   which    the   provisional  place    of 
business  or  place  of  meeting  shall  be  si- 
tuate, and  the  number  (if  any)  or  other 
designation  of  the   house    or   office ;    and 
also, 
.5.  The  names  (c)  of  the  members  of  the  com- 
mittee or  other  body  acting  in  the  forma- 

(h)  7  &  8  Vict.  c.  110,  s.  4.  Forms  for  registration  are  ob- 
tainable at  tlie  registry  office.  As  to  the  fees  payable  upon  and 
in  respect  of  registration,  see  act,  s.  21. 

{c)  Coupling  the  provision  as  to  this  fifth  particular  with  that 
m  the  following  section,  it  would  seem  that  the  only  safe  course 
that  can  be  adopted  by  the  promoters,  &c.  to  avoid  the  penalty 
mentioned  in  the  latter  section,  is,  before  deciding  on  the  mem- 
bers of  the  committee,  to  obtain  from  them  the  necessary  consent 
and  agreement  in  writing,  otherwise  they  run  the  risk  of  the  par- 
ties decided  on  refusing  to  act. 

All  persons  whose  names  appear  on  the  face  of  the  prospectus 
as  provisional  committee-men,  must,  it  is  conceived,  be  regis- 
tered, although  they  are  mere  honorary  members,  and  not  in- 
tended to  take  any  active  share  in  the  management  of  the  com- 


16  Railways  by  Statute, 

tion  of  the  company,  their  respective  oc- 
cupations, places  of  business  (if  any),  and 
places  of  residence,  together  with  a  written 
consent  on  the  part  of  every  such  member 
or  promoter  to  become  such,  and  also  a 
written  agreement  (e)  on  the  part  of  such 
member  or  promoter,  entered  into  with 
some  one  or  more  persons  as  trustees  for 
the  said  company,  to  take  one  or  more 
shares  in  the  proposed  undertaking,  which 
must  be  signed  by  the  member  or  pro- 
moter whose  agreement  it  purports  to  be 
(but  such  agreements  need  not  be  on  a 
stamp)  ;  and  also, 

6.  The  names  of  the  officers  (/)  of  the  com- 

pany and  their  respective  occupations, 
places  of  business  (if  any),  and  places  of 
residence  ;  and  also, 

7.  The  names  of  the  subscribers  to  the  com- 

pany, their  respective  occupations,  places 
of  business  (if  any),  and  places  of  resi- 
dence ;  and  also,  before  it  shall  be  circu- 
lated or  issued  to  the  public, 

pany,  which  is  to  be  intrusted  exclusively  to  a  particular  few, 
termed  the  committee  of  management ;  as  this  latter  committee 
can  only  be  regarded  as  a  mere  branch  or  sub-committee  of  the 
former. 

(e)  This  agreement  may,  it  should  seem,  be  made  with  any 
person  or  persons  that  the  promoters  may  choose  to  select  for 
the  purpose. 

(/)  By  officers  of  the  company,  it  is  conceived,  must  be 
understood  such  persons  as  have  the  charge  and  superintendence 
of  any  branch  or  department  of  the  company's  business,  such,  for 
instance,  as  the  solicitor,  engineer  or  secretary. 


Provisional  Formation  of  a  Company.  17 

8.  A  copy  of  every    prospectus    or   circular, 

handbill  or  advertisement,  or  other  such 
document  at  any  time  addressed  to  the 
public,  or  to  the  subscribers  or  others, 
relative  to  the  formation  or  modification 
of  such  company;  (g) 

9.  And  afterwards,  from  time  to  time,  until  the 

complete  registration  of  such  company,  a 
return  of  a  copy  of  every  addition  to  or 
change  made  in  any  of  the  above  parti- 
culars." 

Upon  the  registration  of  at  the  least  the  three 
first  of  the  above  mentioned  particulars,  the  pro- 
moters become  entitled  to  a  certificate  of  provisional 
registration.  (A) 

The  promoters  are  liable  to  a  penalty,  not  ex- 
ceeding 20/.,  in  case  of  their  failing  to  register  any 
of  the  above  particulars  within  one  month  after  they 
have  been  ascertained  (i)  or  determined,  (k) 

22.  The  promoters  are  relieved  from  all  risk  of 

{g)  Parliamentary  notices  and  circulars,  &c.  touching  the 
mere  conduct  and  management  of  the  affairs  of  the  company, 
are  not  within  this  provision,  but  only  such  notices,  &c.,  as  re- 
late to  its  constitution,  such  as  the  original  prospectus  or  any 
subsequent  advertisement  of  a  change  in  the  governing  body 
the  amount  of  capital,  &c. 

(JO  7  &  8  Vict.  c.  110,  s.  4. 

(i)  The  words  ''ascertained  or  determined,"  in  this  section, 
must,  it  is  conceived,  be  taken  to  mean  the  same  thing  as  the 
term  "  decided"  in  the  preceding.  The  month,  therefore,  would 
begin  to  run,  as  regards  any  one  particular,  from  the  time  that 
it  is  decided  on  by  the  promoters. 

(k)  7  &  8  Vict.  c.  110,  s.  5. 


1 8  Railways  by  Statute. 

incurring  the  penalty,  by  the  appointment  of  a  soli- 
citor to  make  the  required  returns.  (A-)-  They  must, 
however,  in  this  case,  return  a  duplicate  of  the  ap- 
pointment in  writing,  signed  by  some  one  or  more 
of  the  promoters,  together  with  a  duplicate  of  the 
acceptance  of  such  appointment,  signed  by  the  per- 
son so  appointed.  The  solicitor  thereupon  becomes 
the  party  to  make  the  requisite  returns,  and  is  liable 
to  the  penalty  in  case  he  fails  to  do  so,  or  may  even 
be  suspended  from  practice,  or  struck  off  the  rolls, 
if  it  appears  that  he  fraudulently  omitted  to  make  a 
return  (/)  of  any  such  particulars.  The  above  ap- 
pointment continues  in  force  until  a  duplicate  of  the 
revocation  or  of  the  resignation  of  the  appointment, 
signed  as  aforesaid,  be  returned  to  the  registry 
office,  or  until  the  decease  of  the  solicitor;  (/)  also, 
upon  the  company's  obtaining  a  certificate  of  com- 
plete registration  the  authority  of  the  solicitor 
ceases,  (m) 

23.  To  entitle  the  company  to  a  certificate  of  com- 
plete registration,  the  deeds  of  partnership  or  sub- 
scription contracts,  required  by  the  standing  orders 
of  the  two  houses  of  parliament,  must,  in  compliance 
vfith,  and  at  or  within  the  time  required  by  such  or- 
ders, be  deposited  at  the  proper  offices  of  the  two 
houses ;  and  also  a  copy  of  such  deeds  or  subscription 
contracts,  together  with  such  certificate  of  the  receipt 
of  such  plans,  sections  and  books  of  reference,  as 

(/c)  The  promoters  cannot,  under  this  section,  appoint  joint 
solicitors,  and  it  would  seem  questionable  whether  a  firm  can  be 
appointed. 

(/)  7  &  8  Vict.  c.  110,5.6. 

(m)  Ibid.  s.  16. 


Provisional  Formation  of  a  Company.  19 

may  have  been  appointed  by  the  Board  of  Trade, 
must  be  returned  to  the  registry  office,  (n)  This  cer- 
tificate, it  is  to  be  remarked,  ceases  to  be  operative 
upon  the  company's  obtaining  their  act  of  incorpo- 
ration, (o)  or  from  the  time  of  the  same  coming  into 
operation. 

Although  companies  for  the  formation  of  railways^ 
by  complying  with  the  requisites  of  the  above  sec- 
tion, may  entitle  themselves  to  be  completely  regis- 
tered, yet  there  is  nothing,  it  is  to  be  remarked,  in 
the  act,  which  renders  it  obligatory  upon  them  to  do 
so.  It  comes  therefore  to  a  simple  question  of  ex- 
pediency, whether  they  shall  register  completely 
or  not.  Now  a  company  on  complete  registration 
gains  a  certain  accession  of  power  ;  in  particular,  it 
becomes  entitled  to  have  a  common  seal,  to  sue  and 
be  sued  by  its  registered  name,  and  to  receive  instal- 
ments beyond  the  10  per  cent,  required  to  be  depo- 
sited by  the  standing  orders  of  either  house  of  par- 
liament, where  a  further  sum  is  requisite  for  obtaining 
the  company's  act  of  incorporation,  (^j)  Of  these 
powers,  the  latter  more  especially,  it  is  conceived,  (^r) 
may,  under  some  circumstances,  be  of  so  great  im- 
portance to  a  company  to  acquire,  as  to  render  it 
worth  their  while  to  incur  the  increased  expense  of 
registering  completely  for  the  purpose, 

24,  II.  In  order   to   the  due  attainment  of  the 

(n)  7  &  8  Vict.  c.  110,  s.  9. 

(o)   Ibid.  s.  25. 

(p)  The  question  as  to  the  transferability  of  shares,  which 
may  perhaps  be  taken  to  aflbrd  another  ground  in  favour  of 
complete  registration,  will  be  considered  hereafter,  see  post,  s.  4. 

{q)  See  Collier  on  Railways,  App,  pp.  8,  9. 


20  Railways  by  Statute. 

second  of  the  above  objects,  a  series  of  acts  is 
necessary  :  1st,  a  provisional  committee  must  be 
selected  ;  2ndly,  the  scheme  must  be  made  public  ; 
3dly,  the  shares  are  to  be  allotted ;  and,  4thly,  the 
company  must  be  organized  under  the  requisite  pro- 
visional instruments. 

25.  First,  of  the  choice  of  a  provisional  committee. 
Spiritual  persons,  holding  any  cathedral  preferment, 
benefice,  curacy,  or  lectureship,  or  who  are  licensed 
or  allowed  to  perform  the  duties  of  any  ecclesiastical 
office,  cannot,  it  would  seem,  lawfully  act  as  mem- 
bers of  a  provisional  committee  ;  it  might  therefore 
be  prudent  in  the  projectors  of  a  railway  scheme 
to  avoid  choosing  such  persons  on  the  committee, 
though  their  being  so  chosen  or  acting  in  such  capa- 
city would  not  have  the  effect  of  rendering  the  pro- 
jected company  illegal,  or  invalidating  the  parlia- 
mentary contract,  or  subscribers'  agreement,  exe- 
cuted by  the  subscribers  to  the  company,  or  in  short 
any  other  contract  made  on  its  behalf,  (r)     The  pro- 

(r)  See  stat.  1  &  2  Vict.  c.  106,  ss.  29  &  31,  and  stat.  4  &  5 
Vict.  c.  14,  s.  1.  By  the  express  terms  of  the  latter  statute  it  is 
rendered  unlawful  for  any  such  spiritual  person  to  act  as  a  director 
or  manager  of  any  association  or  partnership  formed  for  the  pur- 
pose of  being  engaged  in  and  carrying  on  any  trade  or  dealing 
for  gain  or  profit,  or  to  carry  on  such  trade  or  dealing  in  person. 
Now  it  would  seem  difficult  to  contend  that  a  company  for  the 
formation  of  a  railway  does  noi  fall  within  the  definition  of  a  co- 
partnership or  association  formed  for  the  purpose  of  carrying  on 
a  dealing  for  gain,  and  consequently  any  such  spiritual  person, 
by  becoming  a  manager  or  director  of  such  a  company,  would 
be  offending  against  the  above  act.  But  a  spiritual  person  may 
become  a  subscriber  to  any  such  company,  provided  it  consist 
of  more  than  six  members  or  shareholders. 


Provisional  Formation  of  a  Company.  21 

jectors  of  a  railway  scheme  should  likewise  be  care- 
ful not  to  put  forward  any  person  as  a  member  of 
the  provisional  committee  without  the  proper  autho- 
rity for  the  purpose,  as  by  so  doing  they  may  be 
guilty  of  a  false  pretence  within  the  stat.  7  &  8  Vict, 
c.  110,  s.  65.  (s) 

26.  2dly.  Of  (he  publication  of  the  scheme,  and 
herein  of  the  prospectus  or  advertisement  usually  put 
forward  by  the  projectors  for  this  purpose.  The 
object  of  such  prospectus  is  of  course    to   induce 

(s)  That  section  is  as  follows  :  "  And  forasmuch  as  great  in- 
jury has  been  inflicted  upon  the  public  by  companies  falsely  pre- 
tending to  be  patronized  or  directed  or  managed  by  eminent  or 
opulent  persons  ;  now,  for  the  purpose  of  preventing  such  false 
pretences,  be  it  enacted,  with  regard  to  every  company  or  pre- 
tended company  whatsoever,  whether  registered  or  not,  and 
whether  now  existing  or  not,  that  if  any  person  shall  make  any 
such  false  pretences,  knowing  the  same  to  be  false,  in  any  adver- 
tisement or  other  paper,  whether  printed  or  written,  and  whether 
published  in  any  newspaper,  or  handbill,  or  placard,  or  circular, 
then  every  such  person  shall  forfeit  for  every  such  offence  a  sum 
not  exceeding  ten  pounds."  A  question  has  been  made  upon 
this  section,  whether  it  is  enough  for  a  complainant,  in  order  to 
launch  his  case,  to  show  that  his  name  has  been  improperly  used 
without  his  authority,  express  or  implied,  or  whether  he  must 
go  further,  and  give  evidence  of  a  guilty  knowledge  in  the  party 
charged.  Considering  that  this  question  of  guilty  knowledge  is 
one  peculiarly  within  the  knowledge  of  that  party,  it  would  seem 
that  proof  of  it  cannot  be  requisite  in  the  first  instance  on  the 
part  of  the  complainant ;  but  that  on  his  showing  that  his  name 
has  been  used  without  his  authority,  the  burthen  must  then  lie  on 
the  party  charged  of  disproving  such  knowledge  ;  and  such  ac- 
cordingly was  the  construction  which,  in  a  late  case  at  the  Bow- 
street  police-court,  the  magistrate  seemed  inclined  to  put  upon 
the  above  section. 


22  Railways  hy  Statute. 

parties  to  become  subscribers  :.  it  accordingly  de- 
scribes the  advantages  that  the  project  holds  out  to 
subscribers,  and  invites  applications  for  shares,  a 
form  for  which  purpose  it  usually  contains.  It  fol- 
lows that  il  constitutes  the  basis  of  the  contract  be- 
tween the  parties  till  the  execution  of  the  company's 
provisional  instrument ;  it  being  upon  the  footing  of 
the  prospectus  that  the  parties  who  comply  with  the 
above  invitation  have  their  shares  allotted  to  them, 
and  pay  their  deposits,  {t')  As  the  prospectus  ex- 
ercises so  important  an  influence  in  determining  the 
relations  of  the  parties,  it  follows  that  its  terms 
should  be  carefully  considered  before  it  is  put  forth 
to  the  world.  In  particular,  if  it  is  the  intention  of 
the  promoters  to  reserve  any  portion  of  the  shares 
for  some  particular  purpose  of  the  company,  this 
should  be  disclosed  on  the  face  of  the  document,  as 
otherwise  the  promoters  might  perhaps  be  taken  to 
have  impliedly  parted  with  the  requisite  power  of 
reservation.  Further,  the  promoters  should  care- 
fully avoid  the  inserting  in  the  prospectus  any  exag- 
gerated or  ungrounded  statements  of  the  nature  of  the 
undertaking,  &c.,  as  it  then  might  become  a  question, 
whether  the  parties  who  should  be  induced  to  accept 
letters  of  allotment  on  the  faith  of  such  statements 
would  not  be  entitled  to  be  relieved  in  equity  against 
the  effect  of  such  acceptance,  (m)  or  even  to  raain- 

(t)  See  judgment  of  Tindal,  C.  J.,  in  Fox  v.  Clifton,  6  Bing. 
777  ;  S.  C.  4  M.  &  P.  676. 

(u)  See  Stainbank  v.  Feriiley,  9  Sira.  556;  Colt  v.  Wonllas- 
ton,  2  P.  Wms,  154  ;  Lovell  v.  Hicks,  2  You.  &  Coll.  46  ;  Small 
V.  Attwood,  1  Younge,  416,  460  ;  Green  v.  Barrett,  1  Sim.  45  ; 
Blain  V.  Agar,  1  Sim.  37  ;  2  Sim.  289. 


Provisional  Formation  of  a  Company.  23 

tain  an  action  against  the  promoters  for  the  preju- 
dice sustained  by  them  in  consequence  of  acting  on 
the  supposed  false  representation,  {x) 

Looking  at  the  ordinary  terms  of  the  document  in 
question,  it  cannot  be  taken  to  create  a  partnership 
between  the  subscribers,  but  simply  to  point  to  the 
future  formation  of  a  partnership,  (y) 

27.  Srdly.  Of  the  allotment  of  shares.  We  have 
seen  that  the  prospectus  usually  gives  a  particular 
form  of  application  for  shares  :  a  party  accordingly 
wishing  to  become  a  subscriber  to  the  proposed  pro- 
ject must  transmit  an  application  {z)  in  the  proper 
form  to  the  committee,  by  way  of  answer  (a)  to  which, 
if  approved  of,  he  receives  a  letter  of  allotment. 
By  this  letter  the  applicant  is  informed  of  the  suc- 
cess of  his  application,  and  requested  to  pay  his 
deposit,  (viz.  one-half  per  cent,  authorized  by  the 
registration  act,  and  the  additional  ten  per  cent, 
required   by   the  standing  orders,)   the   form   of  a 

(a)  See  Taylor  v.  Aihton,  11  M.  &  \V,  401. 

(y)  Fox  V.  Clifton,  6  Bing.  777  ;  S.  C.  4  M.  &  P.  676 ; 
Pitchford  v.  Davis,  5  M.  &  W.  2  ;  Whitehead  v.  Barron,  2 
Mood.  &  Rob.  248  ;  Nackells  v.  Crosby,  3  B.  &  C.  814  ;  Bourne 
V.  Freeth,  9  B.  &  C.  622  ;  S.  C.  4  M.  &  R.  512  ;  Wood  v. 
The  Duke  of  Argyle,  22  Law  Journ.  C.  P.  96 ;  S.  C.  6  M.  & 
Gr.  928. 

(s)  I'his  form  usually  requires  the  applicant  to  state  his  name, 
business  and  residence.  He  should  also  be  required  lo  state  his 
place  of  business,  if  any,  with  a  view  to  the  return  of  subscribers 
to  the  registry  office. 

(a)  Semble,  the  answer  of  the  company  ought  to  be  given 
within  a  reasonable  time  afrer  the  application  has  been  made  ; 
or  the  applicant  may  become  entitled  to  treat  his  offer  as  at  an 
end,  and  consequently  to  refuse  to  accept  a  subsequent  allot- 
ment of  shares. 


24  Railways  by  Statute. 

receipt  for  which  is  given  at  the  foot  of  the  letter. 
Usually  also,  in  order  to  guard  against  the  party's 
obtaining  an  indefeasible  interest  in  the  undertaking, 
unless  he  pays  his  deposit  and  executes  the  sub- 
scribers' d:ed  and  parliamentary  contract,  as  re- 
quired by  the  letter,  it  reserves  to  the  committee, 
in  default  of  his  doing  so,  the  power  of  reallotting 
the  shares.  Sometimes  (and  indeed  in  point  of  pru- 
dence it  would  seem  that  it  should  always  do  so) 
the  letter  embraces  a  still  further  stipulation,  viz. 
that  the  above  receipt  is  not  to  be  transferable  ;  as 
this  may  release  the  committee  from  all  possible 
obligation  to  recognize  a  transfer  in  case  of  its  being 
attempted,  {b) 

This  letter  amounts  to  a  final  acceptance  on  the 
part  of  the  company  of  the  party's  proffer  to  become 
a  subscriber  on  the  terms  of  the  prospectus,  con- 
tained in  his  letter  of  application,  and  consequently, 
taken  in  conjunction  with  the  latter  documents,  con- 
stitutes the  agreement  between  the  parties  up  to  the 
time  of  the  execution  of  the  subscribers'  deed  and 
parliamentary  contract.  Consequently,  where  it 
contains  the  above  conditions  as  to  the  payment  of 
the  deposit,  &c.,  the  holder  must,  if  he  wishes  to 
ensure  his  interest  in  the  concern  against  forfeiture, 
take  care  to  pay  the  deposit  at  the  stipulated  time, 
and  otherwise  comply  with  the  conditions  of  the 
letter. 

28.  4thly.  In  order  to  the  full  attainment  of  the 
object  in  question,  the  company  is  usually  consti- 
stuted  under  two  jjrovisional  instruments,  the  one 
termed  a  'parliamentary  contract,   the  other,  a  sub- 

(b)  See  Collier  on  Railways,  App.  p.  10. 


Provisional  Formation  of  a  Company.         25 

scribers'  agreement  (s).  The  main  object  of  the 
former  is  to  provide  for  the  payment  of  each  sub- 
scriber's due  quota  towards  the  expenses  of  the 
undertaking ;  of  the  latter,  to  prescribe  the  neces- 
sary rules  and  regulations  for  the  due  management 
of  the  concern  till  the  act  of  parliament  is  passed. 
The  former  accordingly  binds  the  parties  to  the 
payment  of  their  subscriptions  towards  the  under- 
taking of  which  it  specifies  the  nature  and  object, 
at  the  same  time  giving  a  discretionary  power  to 
the  directors  from  time  to  time  to  alter  or  vary 
the  scheme  as  they  may  find  expedient ;  it  also 
sometimes  makes  provision,  in  the  event  of  the 
application  for  an  act  failing,  for  the  subscribers 
duly  contributing  towards  the  expenses  incidental 
to  the  undertaking.  The  subscribers'  agreement 
names  the  provisional  committee,  and  prescribes  the 
necessary  regulations  for  the  temporary  management 
of  the  concern,  which  it  delegates  to  such  committee  ; 
it  also  specifies  the  amount  of  capital  and  the  num- 
ber of  shares  into  which  it  is  to  be  divided,  and  pro- 
vides for  the  payment  of  a  deposit  by  every  sub- 
scriber, and  the  future  making  of  calls,  &c. 

29.  The  letter  of  allotment,  we  have  seen,  usually 
intimates  the  place  at  which  the  above  instruments 
are  deposited  for  execution,  and  fixes  the  time  for 
the  purpose.  The  holder  accordingly  (who  it  is  sup- 
posed has  paid  his  deposit  and  procured  the  banker's 
receipt  for  the  same)  should  produce  this  docu- 
ment at  that  time  and  place,  and  thereupon  execute 
the  deeds  in  question.  Upon  this  he  receives  a  scrip 
certificate,  (a)  which  entitles  him  to  be  registered  as 

(«)  See  Forms,  post,  Appendix. 

(a)  This  last-mentioned  document,  it  may  be  remarked,  like 

c 


26  Railways  hy  Statute. 

a  proprietor  after  the  passing  of  the  act  of  parlia- 
ment. 

30.  From  what  has  been  here  said,  it  follows  that 
the  constitution  of  a  railway  company,  till  it  obtains 
its  act  of  incorporation,  stands  on  a  twofold  basis, 
viz.  the  two  provisional  instruments  above  described, 
and  the  provisions  of  the  7  &  8  Vict.  c.  110,  (so  far, 
that  is  to  say,  as  they  are  applicable  to  such  species 
of  company,)  and,  consequently,  is  only  to  be  ascer- 
tained by  an  estimation  of  the  combined  eftect  of 
both. 


Sect.  2. — Of  the  Powers,  Privileges  and  Incapacities 
of  a  Company  for  the  Making  of  a  Railway  in  its 
provisiotial  Stale. 

31.  The  powers  &c.  of  a  company  so  situated  are 
referable  to  a  twofold  source, — its  own  provisional 
instruments,  and  the  act  for  the  Registration  of 
Joint  Stock  Companies.  To  ascertain  the  measure 
and  extent  of  such  powers,  it  is  proposed  to  take  a 
view  of  the  powers  derived  from  either  source  :  first, 
severally  ;  and,  secondly,  in  combination. 

32.  And  first,  of  the  powers  given  by  the  provisional 
deeds  of  the  company.  These,  according  to  the  usual 
provisions  of  the  above  instruments,  are  mainly  to 

the  letter  of  allotment,  sometimes  contains  a  stipulation  to  the  effect 
that  it  is  not  to  be  transferred  without  the  assent  of  the  directors. 
The  effect  of  its  insertion  would  seem  to  be  the  same  as  remarked 
;n  regard  of  letters  of  allotment.  In  case  of  a  refusal  on  the 
part  of  the  company  to  deliver  the  scrip,  possibly  under  a  letter 
of  allotment  running  in  the  usual  form,  there  might  be  a  remedy 
against  the  committee  ;  see  Fitzpatrick  on  Railway  Rights,  &:c. 
p.  17. 


Powers,  8j'c.  of  a  Company  for  making  a  Railway.     27 

carry  the  undertaking,  as  described  in  the  parlia- 
mentary contract,  into  effect,  and  for  that  purpose 
to  cause  surveys  to  be  made,  to  obtain  estimates,  to 
make  arrangements  with  landowners,  &c.,  and  gene- 
rally to  adopt  all  the  requisite  measures  for  obtaining 
the  act  of  parliament,  &c. 

SS.  Secondly.  Of  the  powers  vesting  in  the  com- 
pany on  registration ;  and  first,  on  iwovisional  regis- 
tration. 

]  St.  On  obtaining  a  certificate  of  provisional  re- 
gistration, the  company  are  enabled  to  act  provi- 
sionally. The  following  are  the  acts  expressly  enu- 
merated in  the  statute  of  which  they  are  thereupon 
made  capable;  viz.  they  may  assume  the  name  of 
the  intended  company,  but,  coupled  with  the  words 
"  registered  provisionally  ;"  open  subscription  lists; 
allot  shares ;  receive  deposits  at  a  rate  not  ex- 
ceeding IO5.  for  every  100/.  per  share,  and  such 
further  deposit  as  may  be  required  by  the  standing 
orders  of  either  house  of  parliament,  and  perform 
such  other  acts  only  as  may  be  necessary  for  ob- 
taining an  act  of  parliament,  (a) 

But  they  are  forbidden  to  make  calls,  or  to  pur- 
chase, contract  for,  or  hold  lands,  or  to  enter  into 
contracts  for  any  services,  or  for  the  execution  of 
any  works,  or  for  the  supply  of  any  stores,  (a)  The 
statute,  however,  excepts  from  this  prohibition,  1st, 
contracts  for  such  services  and  stores  or  other  things 
as  are  necessarily  required  for  the  establishing  of 
the  company;  2ndly,  any  purchase  or  other  contract 
to  be  made  conditional   on  the  completion   of  the 

(«)  7  &  8  Yict.  c.  no,  s.  23. 
c  2 


28  Railways  by  Statute. 

company,  and  to  take  effect  after  the  act  of  parlia- 
ment shall  have  been  obtained;  Srdly,  contracts  for 
services  in  making  surveys  and  performing  all  other 
acts  necessary  for  obtaining  an  act  of  incorpora- 
tion. (6) 

There  are  certain  acts  which  the  promoters,  &:c. 
are  forbidden  to  do,  before  obtaining  a  certificate  of 
provisional  registration,  under  pain  of  forfeiting  for 
every  offence  a  sum  not  exceeding  251.  Such  are 
he  taking  of  any  money  in  consideration  of  the 
Jlotment  of,  or  by  way  of  deposit  for,  any  shares, 
<fec.  in  the  company;  the  issuing  any  scrip,  &c.;  or 
advertising  the  existence,  &c.  of  the  company ;  or 
making  any  contract  in  the  name  or  on  the  behalf 
of  such  company.  The  above  penalty  any  one  is 
empowered  to  sue  for  and  recover  in  an  action  of 
debt.(c) 

A  certificate  of  provisional  registration,  it  is  to  be 
remarked,  continues  in  force  for  twelve  months  and 
no  more  ;  though  at  the  expiration  of  that  period  it 
may  be  renewed,  on  application  for  that  purpose, 
for  alike  period,  and  indeed  it  must  be  so,  if,  during 
the  continuance  of  the  first  certificate,  the  company 
have  not  procured  their  act,  or  been  completely 
registered,  {d) 

34.  2ndly.  Of  the  powers,  privileges  and  incapa- 
cities of  the  company  on  complete  registration.  Upon 
obtaining  a  certificate  of  complete  registration,  the 
company  are  enabled  by  the  above  statute  to  exer- 

(b)  7  &  8  Vict.  c.  110,  s.  23. 

(c)  Ibid.  s.  24. 

(d)  Ibid.  s.  23.  And  semble,  on  the  expiration  of  the  second 
certificate,  a  third  may  be  obtained,  and  so  on  for  any  number 
of  provisional  certificates. 


Powers,  ^c.  of  a  Company  for  making  a  Railway,    29 

cise  the  like  powers  (e)    as   any  other  joint  stock 
company  completely  registered  under  such  statute, 

(e)  For  the  enumeration  of  these  powers,  see  7  &  8  Vict.  c. 
110,  s.  25,  which  is  as  follows  : 

''  And  be  it  enacted,  that  on  the  complete  registration  of  any 
company  being  certified  by  the  registrar  of  joint  stock  companies, 
such  company  and  the  then  shareholders  therein,  and  all  the  suc- 
ceeding shareholders,  whilst  shareholders,  shall  be  and  are  hereby 
incorporated  as  from  the  date  of  such  certificate  by  the  name  of 
the  company  as  set  forth  in  the  deed  of  settlement,  and  for  the 
purpose  of  carrying  on  the  trade  or  business  for  which  the  com- 
pany was  formed,  but  only  according  to  the  provisions  of  this  act, 
and  of  such  deed  as  aforesaid,  and  for  the  purpose  of  suing  and 
being  sued,  and  of  taking  and  enjoying  the  property  and  effiects  of 
the  said  company ;  and  thereupon  any  covenants  or  engage- 
ments entered  into  by  any  of  the  shareholders  or  other  persons 
with  any  trustee  on  behalf  of  the  company,  at  any  time  before 
the  complete  registration  thereof,  may  be  proceeded  on  by  the 
said  company  and  enforced  in  all  respects  as  if  they  had  been 
made  or  entered  into  with  the  said  company  after  the  incorpo- 
ration thereof;  and  such  company  shall  continue  so  incorporated 
until  it  shall  be  dissolved, and  all  its  affairs  wound  up;  but  so  as 
not  in  anywise  to  restrict  the  liability  of  any  of  the  shareholders 
of  the  company  under  any  judgment,  decree,  or  order  for  the  pay- 
ment of  money  which  shall  be  obtained  against  such  company, 
or  any  of  the  members  thereof,  in  any  action  or  suit  prosecuted 
by  or  against  such  company  in  any  court  of  law  or  equity  ;  but 
every  such  shareholder  shall,  in  respect  of  such  monies,  subject 
as  after  mentioned,  be  and  continue  liable  as  he  would  have  been 
if  the  said  company  had  not  been  incorporated  ;  and  thereupon 
it  shall  be  lawful  for  the  said  company,  and  they  are  hereby  em- 
powered, as  follows  ;  that  is  to  say, 

1.  To  use  the  registered  name  of  the  company,  adding  thereto 

"  Registered  ;"  and  also, 

2.  To  have  a  common  seal  (with  power  to  break,  alter,  and 

change  the  same  from  time  to  time),  but  on  which  must 
be  inscribed  the  name  of  the  company  ;  and  also, 

3.  To  sue  and  be  sued  by  their  registered  name  in  respect  of 


30  Railways  by  Statute. 

subject,    however,  to   certain  exceptions  engrafted 
thereon  by  the  statute. 

any  claim  by  or  upon  the  company  upon  or  by  any  per- 
son, whether  a  member  of  the  company  or  not,  so  long  as 
any  such  claim  may  remain  unsatisfied  ;  and  also, 

4.  To  enter  into  contracts  for  the  execution  of  the  works,  and 

for  the  supply  of  the  stores,  or  for  any  other  necessary 
purpose  of  the  company ;  and  also, 

5.  To  purchase  and  hold  lands,  tenements,  and  hereditaments 

in  the  name  of  the  said  company,  or  of  the  trustees  or 
trustee  thereof,  for  the  purpose  of  occupying  the  same  as 
a  place  or  places  of  business  of  the  said  company,  and 
also,  (but  nevertheless  with  a  licence,  general  or  special, 
for  that  purpose,  to  be  granted  by  the  Committee  of  the 
Privy  Council  for  Trade,  first  had  and  obtained,)  such 
other  lands,  tenements,  and  hereditaments  as  the  nature 
of  the  business  of  the  company  may  require  ;  and  also, 

6.  To  issue  certificates  of  shares  ;  and  also, 

7.  To  receive  instalments  from  subscribers  in  respect  of  the 

amount  of  any  shares  not  paid  up  ;  and  also, 

8.  To  borrow  or  raise  money  within  the  limitations  prescribed 

by  any  special  authority  ;  and  also, 

9.  To  declare  dividends  out  of  the  profits  of  the  concern  ;  and 

also, 

10.  To  hold  general  meetings  periodically,  and  extraordinary 

meetings  upon  being  duly  summoned  for  that  purpose  ; 
and  also, 

11.  To  make  from  time  to  time,  at  some  general  meeting  of 

shareholders  specially  summoned  for  the  purpose,  bye 
laws  for  the  regulation  of  the  shareholders,  members, 
directors,  and  officers  of  the  company,  such  bye  laws  not 
being  repugnant  to  or  inconsistent  with  the  provisions 
of  this  act  or  of  the  deed  of  settlement  of  the  company  ; 
and  also, 

12.  To  perform  all  other  acts  necessary  for  carrying  into  effect 

the  purposes  of  such  compan}',andinall  respects  as  other 
partnerships  are  entitled  to  do  : 


Powers,  ^c.  of  a  Company  for  making  a  Railway.    31 

In  the  first  place,  the  statute  prohibits  the  exer- 
cise by  the  company  of  the  power  to  enter  into  con- 

And  the  said  company  are  hereby  empowered  and  required, — 

13.  To  appoint  from  time  to  time,  for  the  conduct  and  super- 

intendence of  the  execution  of  the  affairs  of  the  company, 
a  number  of  directors,  not  less  than  three,  for  a  period 
not  greater  than  five  years,  with  or  without  eligibility  to 
be  re-elected  at  the  expiration  of  the  term,  as  may  be  pre- 
scribed by  any  deed  of  settlement  or  bye  law ;  and  also, 

14.  To  appoint  and  remove  one  or  more  auditors,  and  such 

other  officers  as  the  deed  of  settlement  under  which  the 
company  shall  be  constituted  may  authorize  : 
Subject  nevertheless,  with  respect  to  all  such  powers  and  privi- 
leges, to  the  provisions  of  this  act,  and  subject  also  to  the  provi- 
sions of  the  deed  of  settlement  of  the  company  or  any  other 
special  authority :  Provided  always,  with  regard  to  any  company 
for  executing  any  bridge,  road,  cut,  canal,  reservoir,  aqueduct" 
waterwork,  navigation,  tunnel,  archway,  railway,  pier,  port,  har- 
bour, ferry  or  dock,  which  cannot  be  carried  into  execution  with- 
out obtaining  the  authority  of  parliament,  that  on  the  complete 
registration  of  any  such  company,  and  before  such  company  shall 
have  obtained  its  act  of  incorporation  or  other  act  whereby  the 
authority  of  parliament  shall  be  granted  for  executing  such  work, 
it  shall  not  be  lawful  for  any  such  company  or  the  directors  or 
officers  thereof  to  exercise  the  hereinbefore  mentioned  power  to 
enter  into  contracts,  otherwise  than  conditionally  upon  obtaining 
such  act,  or  to  exercise  the  power  to  purchase  and  hold  lands  as 
aforesaid,  or  to  exercise  the  power  to  receive  instalments  from 
shareholders  beyond  the  sum  or  per  centage  necessary  to  be  de- 
posited in  compliance  with  the  standing  orders  of  either  house  of 
parliament,  or  such  other  sum  as  may  be  requisite  for  obtaining 
the  act  of  incorporation  or  other  act  for  granting  the  authority 
of  parliament  to  execute  such  works,  or  to  exercise  the  power  to 
borrow  money  as  aforesaid,  or  to  exercise  the  power  to  declare 
dividends  as  aforesaid ;  and,  subject  to  these  last-mentioned 
exceptions,  all  the  powers  by  this  enactment  hereinbefore  given 
to  any  company  completely  registered,  except  the  general  power 
to  perform  all  acts  necessary  for  carrying  on  the  business  of  the 
company,  may  be  exercised  as  fully  by  any  such  company  so 


52  Railways  hy  Statute. 

tracts  otherwise  than  conditionally  upon  obtaining 
an  act  of  incorporation,  of  the  power  to  purchase 
and  hold  lands,  of  the  power  to  receive  instalments 
from  shareholders  beyond  the  sum  necessary  to  be 
deposited  in  compliance  with  the  standing  orders  of 
either  house  of  parliament,  or  such  other  sum  as 
may  be  requisite  for  obtaining  the  company's  act  of 
incorporation,  of  the  power  to  borrow  money,  and 
of  the  power  to  declare  dividends ;  it  further  ex- 
cepts out  of  the  above  gift  of  powers  the  general 
power  to  perform  all  acts  necessary  for  carrying  on 
the  business  of  the  company ;  but  the  company,  at 
the  same  time,  is  still  to  be  at  liberty  to  perform  all 
acts  necessary  for  obtaining  an  act  of  incorpora- 
tion. (/) 

completely  registered  as  by  any  other  company  so  completely 
registered  :  Provided  always,  that  it  shall  be  lawful  for  any 
such  company  to  perform  all  acts  which  may  be  necessary  for 
obtaining  an  act  of  incorporation  or  other  act  for  obtaining  the 
authority  of  parliament  lo  execute  its  works  as  aforesaid,  any 
thing  herein  contained  to  the  contrary  notwithstanding ;  and 
that  upon  obtaining  such  act  of  incorporation  or  other  such  act 
as  aforesaid,  ox  at  the  time  of  the  coming  into  operation  of  such 
act  as  shall  be  thereby  appointed,  all  the  powers  which  any 
such  company  shall  obtain  by  virtue  of  this  act,  and  all  the  pro- 
visions and  regulations  of  this  act  which  shall  apply  to  such 
company,  shall  cease  and  determine,  except  so  far  as  shall  be 
otherwise  provided  by  such  act  of  incorporation  or  other  such 
act  as  aforesaid." 

{f)  Assuming  a  railway  company  to  be  registered  completely 
(and  what  are  the  motives  likely  to  induce  it  to  take  such  a  step 
we  have  already  had  occasion  to  notice),  it  becomes  a  very  im- 
portant question  how  far  the  various  provisions  of  the  statute 
applicable  to  joint  stock  companies  in  general  completely  regis- 
tered extend  to  any  such  company.  Notwithstanding  then  the 
proviso  in  the  second  clause,  which  declares  that  the  act  is  not 


Powers,  Sfc.  of  a  Company  for  making  a  Railway.    33 

From  the  time  of  the  company's  obtaining  their  act 
of  incorporation,  or  at  any  rate  of  such  act  coming 

to  extend  to  companies  for  executing  parliamentary  works,  ex- 
cept as  specially  provided  in  the  act,  it  seems  almost  impossible 
to  suppose,  upon  a  fair  purview  of  the  act,  that  the  main  provisions 
in  question  were  not  intended  by  the  legislature  to  embrace  such 
companies  as  much  as  any  other  species  of  joint  stock  company  ; 
otherwise  (to  give  one  instance  among  many  of  the  conclusions 
flowing  from  the  opposite  doctrine,)  it  comes  to  this,  that  the  act 
must  be  supposed  to  give  a  power  to  parliamentary  companies  to 
appoint  directors  and  auditors,  and  yet  to  be  silent  on  the  sub- 
ject of  their  powers,  qualifications,  &c. ;  or  again,  that  it  accords 
certain  limited  powers  of  contracting  to  parliamentary  companies, 
and  yet  leaves  the  exercise  of  the  powers  in  question  by  such 
companies  utterly  unprovided  for. 

The  hypothesis  that  has  just  been  under  consideration  leading  to 
conclusions  so  repugnant  to  the  almost  obvious  intention  of  the 
legislature,  (an  hypothesis,  it  is  to  be  remarked,  which  is  built 
upon  the  terms  of  the  above  proviso,)  it  only  remains  to  be 
considered,  whether  a  sense  may  not  be  put  upon  those  terms, 
which,  without  doing  too  great  violence  to  their  natural  import, 
may  yet  obviate  this  repugnancy. 

One  view,  then,  that,  it  is  submitted,  may  be  taken  of  such  pro- 
viso, is  to  consider  it  as  an  abridgment  of  what  the  subsequent  spe- 
cial provisions  of  the  acton  the  subjectof  parliamentary  companies 
are  at  large,  and  consequently  as  inserted  from  excess  of  caution, 
and  in  order  to  guard  against  any  possible  inadvertence  on  the  part 
of  the  framers  of  the  act  in  omitting  to  make  those  special  provi- 
sions in  the  subsequent  part  of  ihe  act,  which  it  was  intended 
should  be  made;  or  again,  it  may  be  said,  that  the  act  does  in 
effect  specially  provide  for  the  extension  of  the  enactments  in 
question  to  parliamentary  companies  by  virtue  of  the  special  pro- 
vision which  it  makes  for  the  complete  registration  of  such  com- 
panies ;  inasmuch  as  that  provision  operates  once  for  all  to  bring 
such  companies  within  the  operation  of  the  act,  and  consequently 
whenever  the  act  subsequently  speaks  of  completely  registered 
companies  generally,  it  may  fairly  be  intended  to  comprehend  this 
c  5 


34  Railways  hy  Statute. 

into  operation,  the  company  ceases  to  be  liable 
to  the  operation  of  the  registration  act,  and  the 
powers,  &c.  incidental  to  complete  registration  like- 
wise cease  and  determine,  (g') 

35.  2dly.  From  this  purview  of  the  provisions  of 
the  registration  act  it  would  appear  that  as  far  as  re- 
gards companies  provisionally  registered,  it  operates 
to  curtail  the  powers  of  action  which  such  companies 
previously  enjoyed  as  constituted  under  the  ordinary 
provisions  of  the  subscribers'  deed  ;  whereas  in  the 
case  of  companies  completely  registered,  though  in 
some  respects  it  curtails  yet  in  others  it  enlarges  their 
powers ;  on  the  one  hand  it  entitles  them  to  use  a 
common  name  and  common  seal,  and  to  sue  and  be 
sued  by  that  name,  things  which  they  were  clearly 

particular  class  of  companies  just  as  much  as  if  it  had  made  ex- 
press mention  of  them,  there  being  nothing,  of  course,  either  in 
the  express  terms  of  the  particular  enactment,  or  deducible  by 
way  of  reasonable  inference  from  its  general  nature  and  import, 
to  exclude  them. 

Supposing  parliamentary  companies  to  fall  within  the  above 
provisions,  it  may  be  proper  briefly  to  notice  the  principal  of 
them  in  this  place: — As  to  the  duties  of  the  company  with 
respect  to  registration,  and  the  making  of  returns,  and  the  like, 
see  sects.  11,  12,  14,  15,  16, 17,  18.  As  to  the  powers  and  qua- 
lifications of  directors,  and  the  validity  of  their  acts,  see  sects.  27 
— 31.  As  to  books  and  accounts  of  company,  and  right  of 
inspecting  same,  see  sects.  32 — 37.  As  to  the  appointment  of 
auditors,  their  power?,  &c.,  see  sects.  38 — 43.  As  to  contracts 
of  company,  their  requisites,  Sec,  see  sects.  44 — 46.  As  to  bye 
laws,  see  sects.  47,  48.  As  to  rights,  &c.,  of  shareholders,  see 
sect.  26.  As  to  capital  of  company,  certificates  of  shares,  iStc, 
see  sects.  49 — 56.  As  to  judgments  against  company,  and  the 
obtaining  execution  against  shareholders,  contribution,  &c.,  see 
sects.  66 — 68. 

(^)  7  £c  3  Vict.  c.  110,  s.  25. 


Powers.  <§'C.  of  a  Company  for  making  a  Railway.    So 

incompetent  to  do  by  the  common  law  ;  on  the 
other,  it  restricts  them  from  purchasing  land,  and, 
in  general,  entering  into  any  contract  otherwise  than 
conditionally  upon  the  passing  of  their  act. 


Sect.  3. — Of  the  Dulles  of  such  Company,  and  herein 
more  particularly  of  the  preliminary  Steps  to  and 
of  the  obtaining  the  Act  of  Parliament. 

36.  The  duties  of  the  projectors  &c.  of  an  in- 
tended railway  company,  which  it  is  proposed  to 
notice  in  this  place,  mainly  relate  to  the  two  follow- 
ing points  ;  1st,  the  allotment  of  shares  and  receipt 
of  deposits,  and  2dly,  the  taking  the  necessary  steps 
in  order  to  the  obtaining  an  act  of  parliament, 

37.  As  to  the  allotment  of  shares  and  the  receipt 
of  the  deposits.  We  have  already  had  occasion  to 
notice  what  is  the  nature  of  the  prospectus  and  the 
object  with  which  it  is  published.  It  in  effect 
amounts  to  an  invitation  to  the  public  to  participate 
in  the  benefits  of  the  proposed  undertaking  on  the 
terms  set  forth  in  such  prospectus.  The  fiduciary 
character  of  the  projectors  in  such  case  commences 
from  the  time  tiiey  begin  to  deal  with  the  public, 
and  is  of  course  controlled  in  equity  by  the  repre- 
sentations then  made  to  the  public,  (i)     Hence,  if 

(i)  See  judgment  of  Vice- Chancellor  in  Foss  v.  Harhoitle,  2 
Hare,  489  ;  Hichens  v.  Congreve,  4  Russ.  562,  and  remarks 
thereon  in  judgment  of  Vice-Chancellor  in  Fnss  v.  Harbottle,  See 
also  Societi)  of  f  radical  Knowledge  v.  Abbott,  2  Beav.  559  ;  there 
it  appeared  that  four  projectors  of  a  public  company  obtained  a 
charter,  by  which  they  and  all  persons  who  might  become  sub- 
scribers were  incorporated.     The  capital  was  declared  to  be 


36  Railways  by  Statute 

the  prospectus  is  silent  on  the  subject  of  the  reser- 
vation of  shares,  it  may  be  questioned  whether  they 
can  of  their  own  heads  take  upon  themselves  to  ex- 
ercise such  a  power,  and  whether  consequently  in 
the  event  of  their  doing  so,  a  court  of  equity  would 
not  interfere  to  compel  them  to  proceed  to  an  allot- 
ment of  the  remaining  shares  with  all  reasonable 
speed,  supposing  at  least  it  were  shown  that  there  were 
fitting  applicants  willing  to  accept  such  allotments  ; 
more  especially  if  tJie  reservation  were  intended  not 
to  serve  any  object  of  the  company,  but  to  enable 
the  managers  to  dispose  of  such  shares  for  their  pri- 
vate advantage.  In  the  latter  case  indeed,  sup- 
posing any  profits  were  shown  to  have  accrued  from 
such  a  transaction,  it  would  seem  that  the  court  might 
possibly  be  inclined  to  go  a  step  further,  and  compel 
the  receivers  to  account  for  those  profits  for  the  ge- 
neral benefit  of  the  company. 

A  similar  principle  would  seem  to  apply  to  the 
case  where  the  committee  suffers  any  portion  of  the 
deposits  to  remain  unpaid.  The  subscribers  who 
have  paid  their  deposits  might,  it  is  conceived  in 
such  a  case,  proceed  in  equity  against  the  com- 
mittee and  the  defaulters  to  compel  the  payment  of 
such  deposits,  or  if  there  were  nothing  in  the  pro- 

20,000/.,  which  was  to  be  divided  into  400  shares.  Before  any 
other  subscribers  had  joined,  the  four  projectors,  of  common 
assent,  divided  the  400  shares  amongst  themselves,  accounting  to 
the  corporation  (as  was  alleged)  for  12,000/.  and  not  20,000/. 
They  afterwards  disposed  of  the  shares.  A  bill  being  subse- 
quently filed  by  the  corporation  against  the  projectors,  impeach- 
ing the  transaction  and  to  compel  them  to  pay  the  full  consider- 
ation, it  was  held,  that  though  at  the  time  they  were  the  only 
persons  interested  in  the  company,  yet  it  was  not  competent  for 
them  to  take  the  shares  without  paying  the  full  consideration. 


Duties  of  a  Company  for  making  a  Railway.     37 

spectus  or  letters  of  allotment  rendering  it  obligatory 
on  the  holders  to  pay  up  their  deposits,  at  any  rate 
to  compel  the  committee  to  proceed  to  a  forfeiture 
and  reallotment  of  the  shares  held  by  such  defaulters. 

The  managers  of  the  company  should  be  care- 
ful, in  the  allotment  of  the  shares,  not  to  issue 
more  than  they  are  authorized  to  do,  as  they  may 
thereby  subject  themselves  to  an  action  at  the  suit 
of  a  bond  fide  holder,  who  is  unable,  in  consequence, 
to  get  his  shares  registered  on  the  passing  of  the 
act.  (k) 

38.  2dly.  We  have  seen  that,  among  the  things 
which  it  is  mainly  important  for  the  projectors  of  an 
intended  line  of  railway  to  do,  one  is  to  comply  with 
the  regulations  adopted  by  parliament  on  application 
for  bills  of  this  nature.  These  regulations  (/)  may 
be  classed  under  four  heads,  as  they  relate,  1.  To 
the  preliminary  steps  ;  2.  To  the  petition ;  3.  To 
the  frame  of  the  bill  ;  and  4.  To  the  proceedings  in 
either  house  of  parliament. 

These  heads  relate  so  exclusively  to  the  law  and 
practice  of  parliament,  that  it  has  been  thought  un- 
necessary to  notice  them  further  in  this  place,  except 
so  far  as  regards  one  of  such  regulations,  the  prac- 
tical working  of  which,  having  been  the  subject  of 
some  little  discussion,  may  perhaps  require  to  be 
considered  more  particularly,  viz.  that  which  pro- 
vides that  no  railway  bill  shall  be  read  the  third 
time  unless  a  certain  proportion  (m)  of  the  probable 

(k)  Diet.  arg.  in  Dalq\.  Thnmpson,  10  M.  &  W.  315. 

(/)  See  standing  orders  and  summary  of  parliamentary  pro- 
ceedings in  course  of  passage  of  bill  through  Parliament,  post, 
Appendix. 

(m)  By  the  standing  orders  this  proportion  is  now  three- 
fourths. 


38  Railways  by  Statute, 

expense  of  the   proposed   works   have  been    sub- 
scribed for,  &c. 

39.  Where  a  railway  bill  is  about  to  be  brought 
into  parliament,  and  only  a  small  number  of  the 
shares  subscribed  for,  it  is  no  uncommon  thing  for 
the  members  of  the  provisional  committee,  or  some 
of  the  other  parties  mainly  interested  in  the  success 
of  the  proposed  undertaking,  to  subscribe  for  such 
additional  shares  as  are  requisite  to  make  up  the 
number  fixed  by  the  above  rule,  in  order  to  enable 
the  act  to  pass.  This  is  done  upon  the  understand- 
ing that  the  additional  shares  thus  subscribed  for  are 
to  be  held  in  trust  for  the  company,  and  that  the 
immediate  subscribers  are  to  be  exonerated  from 
all  personal  liability  in  respect  of  them.  Upon  the 
passing  of  the  act,  steps  are  usually  taken  to  give 
effect  to  the  above  understanding,  either,  it  may  be, 
by  a  release  and  abandonment  of  all  interest  in  such 
additional  shares  made  on  the  part  of  the  holders  to 
the  company,  or  by  a  resolution  of  the  company 
ordering  that  the  trusts  be  annulled  and  the  shares 
transferred  to  some  officer  of  the  company  to  hold  at 
their  disposal.  The  question  that  arises  in  any  such 
case  is  of  course  as  to  the  effect  of  such  a  transac- 
tion,— whether  the  subscription  is  to  be  considered 
a  fraud  on  tlie  legislature,  and  the  bill  obtained  in 
consequence  of  it,  and  every  thing  done  under  that 
bill  a  nullity  or  not.  The  answer  woidd  seem  to  be 
obvious,  viz.  that  it  is  for  the  houses  of  parliament 
to  determine  what  is  a  subscription  for  shares  that 
will  satisfy  them  ;  consequently,  if  they  are  duly 
satisfied  that  such  additional  subscriptions  are  suffi- 
cient within  the  view  and  construction  of  their  own 
order,  and  think   themselves  authorized,  upon  the 


Duties  of  a  Company  for  mahing  a  Railway.      39 

strength  of  them,  to  sanction  the  passing  of  the  bill, 
a  court  of  law  cannot  take  upon  itself  to  say,  simply 
on  such  a  state  of  facts,  that  those  subscriptions  are 
a  fraud  and  a  nullity,  and  that  the  houses  of  parlia- 
ment allowed  themselves  to  be  entrapped  into  the 
measure  of  passing  the  bill  by  a  mere  colourable 
compliance  with  their  own  orders.  Such  subscrip- 
tions must  then,  it  seems,  be  deemed  good ;  and 
those*  making  them  substantially  holders  of  such 
shares,  liable  in  respect  of  them  to  all  the  operations 
which  are  to  be  performed  by  the  shareholders  in 
general,  and  at  the  same  time  possessed  of  the  like 
liberty  of  dealing  with  those  shares,  that  any  ordi- 
nary subscriber  for  a  less  quantity  of  shares  has  of 
dealing  with  his.  If  the  subscription  is,  in  the  first 
instance,  valid,  it  cannot,  it  is  conceived,  become  of 
no  avail,  because  subsequently  the  parties,  who  have 
entered  into  so  large  a  subscription,  take  certain 
steps,  unauthorised  by  the  act,  and  therefore,  of 
necessity,  wholly  inefi'ectual,  for  the  purpose  of  es- 
caping from  the  obligations  imposed  on  them  by 
their  subscription.  On  the  contrary,  the  first  act 
must,  it  seems,  be  deemed  still  valid,  and  the  second 
invalid;  the  subscription  good,  and  the  means  taken 
to  effect  a  subterfuge  from  it  void  ;  and  the  parties 
consequently  remain,  as  they  were  originally,  bound 
to  make  good  their  subscriptions,  notwithstanding 
any  secret  acknowledgment  of  trust,  or  any  declared 
intention  on  the  part  of  the  company  to  relieve  them 
from  their  responsibility  as  trustees.  Hence,  when 
calls  are  made  on  the  shareholders,  they  are  as  much 
liable  as  the  other  shareholders  ;  and  so  far  from 
their  having  an  equity,  under  the  supposed  circum- 
stances, to  be  relieved  against  the  payment,  a  court 


40  Railways  hy  Statute. 

of  equity  would  never  allow  the  directors  of  the 
company  so  to  proceed  as  to  make  calls  upon  the 
general  body  of  the  subscribers,  and  to  make  none 
in  respect  of  such  additional  shares,  (n) 

40.  Although,  where  parties  take  shares  in  trust 
for  the  company,  they  are  primarily  liable  to  the 
payment  of  calls  like  ordinary  shareholders,  still,  it 
is  conceived,  like  any  other  trustees,  they  have  a 
right  to  be  reimbursed  by  their  cestui  que  trusts 
any  such  outlay,  as  an  expense  incurred  in  the  exe- 
cution of  their  trusteeship,  (o) 

Parties,  in  short,  taking  shares  under  such  circum- 
stances must  be  regarded  as  quasi  guarantors  of  the 
success  of  the  undertaking ;  whatever  be  the  ulti- 
mate event  of  such  undertaking,  whether  it  fail  or 
prosper,  they  must  pay  their  contributions  in  com- 
mon with  the  other  members  of  the  company ;  but 
in  the  latter  case  they  may,  it  seems,  come  upon 
the  funds  of  the  company  to  reimburse  themselves 
what  they  are  out  of  pocket  on  account  of  the  com- 
pany. From  the  principle  just  laid  down,  viz.  that 
parties  subscribing  for  the  above  purpose  become 
substantially  subscril)ers,  and  so  stand  on  the  same 
footing  as  ordinary  shareholders,  it  would  seem  to 
follow  that  they  must  likewise  be  entitled  to  all  the 
privileges  of  shareholders,  such,  for  instance,  as  the 

(n)  Preston  v.  The  Grand  Collier  Dock  Compmy,  2  R.  Cas. 
358  ;  S.  C.  U  Sim.  328  ;  S.  C.  nom.  Preston  v.  Giiyon,  19  Law 
Journ.  Ch.  73  ;  Mangles  v.  The  Grand  Collier  Dock  Company, 
2  R.  Cas.  359  ;  S.  C.  10  Sim.  519.  See  also  Playfair  v.  The 
Birmin''ham,  Bristol  and  Thames  Junction  Railway  Company, 
1  R.  Cas.  640. 

(o)  Judgment  of  Vice-Chancellor  in  Preston  v.  The  Grand 
Collier  Dock  Company,  ubi  supra. 


Duties  of  a  Company  for  making  a  Railway.     41 

attending  meetings  and  voting,  acting  as  directors 
(supposing  them,  that  is  to  say,  to  be  in  other 
respects  qualified),  and  the  like.  The  validity, 
therefore,  of  meetings  and  of  acts  done  at  such 
meetings  cannot  be  disputed,  because  that,  to  con- 
stitute the  requisite  number  of  shareholders  at  any 
such  meeting,  such  persons  must  be  taken  into  ac-/ 
count,  (p) 


Sect.  4.  —  Of  the  Rights  and  Liabilities  incidental  to 
the  above  State  of  Things. 

I.  Internal  Rights  and  Liabiliiies  of  Shareholders. 
II.  Liabilities  to  Third  Parties. 

41.  Under  this  branch  of  our  subject  a  twofold 
state  of  rights  and  liabilities  presents  itself  for  con- 
sideration :  1st,  between  the  subscribers  themselves; 
2nd,  between  the  subscribers  and  third  parties.  The 
first  head  again  subdivides  itself  into  two,  according 
as  the  subscribers  are  viewed  as  one  homogeneous 
body,  or  as  distinguished  into  simple  subscribers 
and  the  governing  body  or  directory. 

42.  I.  Internal  Rights  and  Liabilities,  (q) — 
Subscribers  viewed  simply  as  one  body,  without  regard 

(p)  See  note  (n),  ante,  p.  40. 

(tj)  It  has  been  assumed  in  the  text  that  the  parties,  whose 
rights  and  liabilities  it  is  proposed  to  investigate,  have  signed  the 
subscribers'  deed  and  parliamentary  contract,  the  prior  state  of 
things  being  necessarily,  from  the  very  nature  and  end  of  par- 
liamentary companies,  limited  in  tlieir  case  to  a  very  brief  period. 
The  present  condition,  however,  of  railway  speculation  in  this 
kingdom  is  such,  as  renders  it  by  no  means  improbable  that 


42  Railways  by  Statute. 

to  the  differences  established  between  them  by  the 
terms   of  their  association.     Regarded  in  this  light, 

questions  may  arise  touching  this  prior  state  of  things ;  and  it 
may  therefore  be  proper  briefly  to  consider  the  rights  and  liabi- 
lities of  parties  while  so  circumstanced.  Now  there  are  two 
possible  combinations  of  events  that  require  to  be  here  con- 
sidered ;  first,  where  the  project  goes  off  before  the  arrival  of 
the  time  for  the  execution  of  the  subscribers'  agreement  and  the 
parliamentary  contract.  The  second,  where  though  that  time  is 
arrived,  yet  holders  of  letters  of  allotment  neglect  or  refuse  to 
sign  the  above  instruments.  In  the  first  ca?e  the  subscribers 
may,  generally  speaking,  recover  the  amount  of  their  deposits. 
(Nockells  v.  Crosby,  3  B.  &  C.  814).  In  the  latter  the  exact 
relative  position  of  the  parties  must  depend  on  the  terms  of  the 
prospectus,  taken  in  conjunction  with  the  letter  of  application 
for  shares  and  the  letter  of  allotment.  As  a  general  rule  then, 
it  would  seem  that  a  party  who  applies  for  shares  and  receives  an 
allotment  thereof  m  pursuance  of  such  application,  cannot  after- 
wards withdraw  from  the  undertaking  to  which  he  has  thus 
acceded,  and  discharge  himself  of  the  attendant  liabilities,  with- 
out the  consent  of  the  other  subscribers.  (See  Kidwelly  Cayial 
Compani)  v.  Raby,  2  Price,  93.  As  to  the  effect  of  a  transfer,  see 
post,  p.  45,  &c.).  If  such  a  party  therefore  subsequently  refuse  to 
pay  his  deposit,  or  to  execute  the  subscribers'  agreement  and  par- 
liamentary contract,  semble,  an  action  would  lie  against  him  at 
the  suit  of  the  provisional  committee,  the  very  act  of  his  appli- 
cation for  shares  (where  at  least  it  contains,  as  it  usually  does, 
an  engagement  to  accept  the  shares  if  allotted  to  him,  &c.), 
followed  up  by  the  subsequent  allotment,  irrevocably  binding 
him  to  undertake  all  the  liabilities  contemplated  thereby.  Or, 
supposing  the  interests  of  the  undertaking  required  it,  it  might 
be  competent  for  the  committee  to  file  a  bill  in  equity  against 
the  defaulters  to  enforce  a  specific  performance  of  that  engage- 
ment. 

Although  by  the  express  terms  of  the  letter  of  allotment,  the 
allotment  is  to  be  void,  in  case  of  the  allottee  failing  to  comply 
with  the  conditions  it  imposes  on  him,  yet  this  cannot,  it 
should  seem,  be  construed  to  give  an  option  to  the  allottee  to 
avoid  the  allotment,  by  neglecting  or  refusing  to  comply  with 


Rights,  ^'c.  of  Company  foi-  making  a  Railway.     43 

the  different  members,  it  has  been  said,  must  be 
looked  on  as  partners,  being  persons  associated 
together  for  a  common  purpose.  One  subscriber 
cannot  therefore  maintain  an  action  against  another 
on  a  cause  of  action  relating  to  the  common  concerns 
of  the  undertaking  ;  a  subscriber,  for  instance,  who 
acts  as  agent  to  the  subscribers,  cannot  maintain  an 
action  for  work  done  by  him  in  that  character  against 
another  subscriber,  (r) 

43.  But  if  an  act  be  done  by  one  member  of  a 
company  upon  the  credit  or  for  the  benefit  of  another 
individually,  it  may  be  made  the  ground  of  an  action 

those  conditions,  but  it  must  be  understood  to  mean  voidable 
only  at  the  election  of  the  provisional  committee.  (Doe  d. 
Bryanv.  Bancks,  4  B. &  Aid.  401 ;  Rfde  v.  Fair,  6  M.  &  S.  125 ; 
Ariisby  v.  Woodward,  6  B.  &  Cr.  519.)  And  in  alike  manner, 
when  the  letters  of  allotment  speak  of  the  shares  being  forfeited 
or  re-allotted,  in  ease  of  the  allottee's  not  paying  his  deposit, 
this  must  be  understood  not  absolutely,  but  at  the  election  of  the 
committee.  Of  course,  if  the  committee  should  choose  to  avail 
themselves  of  the  power  usually  reserved  to  them  by  letters  of 
allotment  in  such  cases  of  default,  viz.  of  reallotting  the  shares, 
that  would  terminate  the  original  allottee's  liabilities. 

(r)  Holmes  V.  Higgins,  1  B.  &  C.  74  ;  it  makes  no  difTerence 
that  the  shares  are  held,  not  by  the  plaintiff  himself,  but  by 
another  in  trust  for  him  ;  see  Goddard  v.  Hodges,  3  Tyr.  209  ; 
S.  C.  1  C.  &  M.  33.  So  where  a  resolution  was  passed  by  a 
company,  of  which  both  plaintiff  and  defendant  were  directors, 
to  rent  plaintiff's  house,  and  a  draft  agreement  was  drawn  up 
in  pursuance  of  the  resolution,  but  not  signed  or  stamped,  and 
the  company  subsequently  occupied  the  premises,  it  was  ruled, 
in  an  action  for  use  and  occupation  brought  by  the  plaintiff 
against  a  co-director,  that,  as  the  plaintiff  was  a  co-director, 
the  law  would  imply  he  was  a  co-tenant,  and  therefore  unable 
to  support  his  action,  and  that  to  get  rid  of  this  implication,  be 
was  bound  to  show  a  special  agreement.  Chadwick  v.  Clarke, 
23  Law  Journ.  C.  P.  233. 


44  Ra'dnays  by  Statute, 

against  him  by  the  former,  even  though  it  have  a 
reference  more  or  less  remote  to  the  affairs  of  the 
company ;  as,  for  instance,  where  a  shareholder 
advances  money  on  the  credit  of  a  director  for  the 
purposes  of  the  company  ;  though  in  such  a  case  it  is 
of  course  a  question  for  the  jury  whether  the  money 
were  lent  upon  the  credit  of  the  company  at  large 
or  of  the  director  individually,  (s)  So,  where  a 
party  pays  the  amount  of  an  attorney's  bill  jointly 
retained  by  himself  and  others,  who  had  acted  as 
co-directors  of  a  proposed  railway  company,  on  their 
personal  responsibility,  to  defend  them  in  an  action 
for  debts  contracted  on  account  of  the  concern,  it 
has  been  held  that  he  is  entitled  to  sue  the  others 
for  contribution.  (0  And  the  like  rule  applies 
where  there  is  an  express  contract  with  a  particular 
member,  (u) 

44.  The  subscribers  are  next  to  be  viewed  as  dis- 
tinguished into  simple  subscribers,  and  a  governing 
body  or  directory.  The  simple  subscriber  (to  com- 
mence with  a  view  of  his  position)  is  liable  to  the 
performance  of  all  those  stipulations  which  he  takes 
upon  himself  by  the  agreements  just  considered, 
such,  for  instance,  as  the  payment  of  his  deposit  and 
the  like ;  and  in  case  of  any  breach  of  those  stipu- 
lations, he  may  of  course  be  sued  for  the  same. 

This  liability  can  only  be  determined  in  two  ways; 
1st,  by  the  dissolution  of  the  company  without  ob- 
taining their  act  of  parliament ;  2nd,  in  the  event  of 
the  act  being  obtained,  by  a  transfer  of  the  party's 

(s)  Colley  V.  Smith  and  others,  2  Moo.  &  R.  96. 

(i)  Edger  v.  Kiwpp,  6  Scott's  N.  R.  707. 

{u)  Chadu-i'k  v.  Claike,  23  Law  Journ.  C.  P.  233. 


Rights,  ^c.  of  Company  for  making  a  Railway.     45 

shares,  followed  up  by  the  registration  of  the  trans- 
feree pursuant  to  the  act.  (v) 

45.  On  the  other  hand,  he  is  entitled  to  insist  on 
the  directors  administering  the  funds  with  which 
they  are  intrusted  for  the  purposes  of  the  under- 
taking, and  generally  that  they  shall  act  up  to  the 
ends  for  which  they  are  invested  with  their  autho- 
rity. 

46.  With  regard  to  the  interest  of  the  individual 
subscriber  in  the  undertaking,  this  requires  to  be 
considered  in  two  lights;  1st,  as  it  stood  before  the 
passing  of  the  late  statute  for  the  registration  of 
joint  stock  companies ;  and,  2ndly,  as  to  how  far  it 
has  been  affected  by  that  act.  1st.  Then  before  the 
passing  of  the  act  in  question,  a  subscriber  to  a 
provisional  company  acquired  no  legal  interest  in 
the  undertaking,  nothing  that  could  be  correctly 
termed  a  share,  the  transferable  sht;res  of  the  capital 
and  the  proprietorship,  if  it  may  be  so  called,  being 
the  result  of  the  company's  act  of  incorporation,  and 
of  the  powers  and  privileges  given  by  the  act.  A 
party,  indeed,  in  subscribing  to  an  undertaking  of 
that  nature,  naturally  proportioned  his  subscription 
to  the  amount  of  the  shares  that  he  ultimately  hoped 
to  possess  ;  and  these  subscriptions  were  very  com- 
monly divided  into  what  were  termed  shares,  and 
certificates  granted  as  evidence  of  the  right  to  shares. 
And  not  only  were  such  certificates  granted,  but 
very  commonly  bought  and  sold,  and  thereby  made 
the  means  of  gaming  and  improvident  speculation, 
and  even   in  some  cases  of  frauds  of  a  most  dan- 

(d)  As  to  tl;is  point,  see  post,  cap  3,  sect.  4,  sub-sect.  3. 


46  Railways  by  Statute. 

gerous  character,  (v)  Such  dealing,  however,  in  cer- 
tificates, where  it  was  tainted  with  fraud,  was  of 
course  clearly  illegal,  and  even,  in  the  absence  of  all 
fraud  or  improper  practice  in  the  particular  case,  its 
validity  was  open  to  doubt; (a;)  though  upon  the  whole 
the  better  opinion  would  seem  to  have  been  that  it  was 
lawful.  It  would  seem  to  follow,  as  a  consequence 
of  this  supposed  legality  of  bargains  for  scrip,  letters 
of  allotment,  &c.,  that  it  gave  a  bon&  fide  purchaser 
a  right  to  be  registered  on  the  passing  of  the  act.  (y) 
So  likewise  either  party  to  the  contract  might  have 
enforced  it  against  the  other,  though  the  party  so 
seeking  to  enforce  the  contract  would,  of  course,  have 
been  bound  in  such  a  case  to  show  a  performance  of 
all  conditions  precedent  on  his  part.  Supposing, 
therefore,  the  shares  not  to  have  been  transferable 
without  the  assent  of  the  directors,  it  of  course  lay 
upon  the  vendor,  where  he  songht  to  recover  the  price 
of  his  scrip  from  the  purchaser,  to  show  that  he  had 
obtained  that  assent ;  and  consequently,  if  he  failed 
to  do  this,  he  could  not  support  his  action,  (s)     But 

(v)  Judgment  of  the  Master  of  the  Rolls  in  Jackson  v.  Cocker, 
2  R.  Cas.  375  ;  S.  C.  4  Beav.  59. 

(i)  See  judgment  of  the  jMaster  of  the  Rolls  m  Jackson  v. 
Cocker,  ubi  supra  ;  Josephs  v.  Pebrev,  3  B.  &  C.  639  ;  but  see 
Daly  V.  Thompson,  10  M.  &  W.  309,  and  judgment  of  Lord 
Denman,  C.  J.  in  London  Grand  Junction  Railway  Cotnpant)  v. 
Freetnun,  2  M.  &  Gr.  638  ;  .S.  C.  2  R.  Cas.  460.  See  also  Har- 
rison V.  Heathern,  6  M.  &  Gr.  81,  where  it  was  laid  down  that 
the  issuing  shares,  purporting  to  be  transferable  at  the  will  of  the 
holder,  did  not  necessarily  render  a  company  illegal. 

(y)  See  Daly  v.  Thompson,  10  M.  &  W.  309.  This  doc- 
trine, it  should  seem,  supposes  the  shares  to  have  been  originally 
transferable  without  the  assent  of  the  directors,  or  else  that  such 
assent  had  been  previously  obtained. 

(2)   Wilkinson  v.  Lloyd,  Leeman  v.  Lloyd,  23  L  J.  Q.  B.  165. 


Rights,  Si'C.  of  Company  for  making  a  Railway.     47 

the  purchaser,  though  he  was  liable  for  the  price  of 
the  scrip,  was  not  at  any  rate,  under  such  circum- 
stances, impliedly  bound,  in  the  absence  of  a  special 
contract,  to  accept  a  legal  transfer  of  the  shares  in 
case  of  the  act  subsequently  passing,  or  to  indemnify 
the  seller  against  liabilities  to  calls,  in  respect  of  such 
shares,  (a)  And  where  the  purchaser  liad  paid  the 
purchase  money,  in  case  of  a  subsequent  failure  of  the 
consideration  he  became  entitled  to  rescind  the  con- 
tract, and  recover  back  the  money.  As,  for  instance, 
if  it  were  made  necessary  by  the  terms  on  which  the 
vendor  held  his  shares  to  procure  the  assent  of  the 
directors  to  the  transfer,  if  he  failed  to  do  this,  the 

(a)  Jackson  v.  Cocker,  ubi  supra.  Certain  persons,  previous 
to  soliciting  an  act  of  incorporation  for  forming  a  railway,  exe- 
cuted a  subscribers'  deed  and  a  parliamentary  contract ;  and 
they  received  certain  scrip  certificates  as  evidence  of  their  sub- 
scriptions, and  upon  which  a  certain  amount  had  been  paid. 
The  act  of  incorporation  passed,  providing  for  the  registration  of 
shares,  empowering  the  company  to  make  calls,  subjecting  de- 
faulters in  payment  to  actions  for  debt,  and  declaring  that  their 
shares  should  be  forfeited,  and  providing  a  form  for  the  legal 
transfer,  &c.  of  shares.  The  plaintiff,  a  party  to  the  subscribers' 
and  parliamentary  deeds,  previously  to  the  passing  of  the  act,  sold 
his  scrip  certificates,  and  having  been,  subsequently  to  the  act  pass- 
ing, required  to  pay  calls  on  his  shares,  filed  a  bill  praying  that  the 
purchaser  might  be  declared  to  have  taken  an  equitable  assign- 
ment of  those  shares,  and  might  indemnify  the  plaintiff  from  all 
past  and  future  liabilities  from  the  time  of  the  sale.  It  was  held, 
that  the  defendant,  the  purchaser,  not  having  signed  the  sub- 
scribers' contract  or  parliamentaty  deeds,  was  in  no  way  liable  to 
the  company  ;  that  there  being  no  special  contract  between  the 
parties,  binding  the  purchaser  to  accept  a  legal  transfer  of  the 
shares,  or  to  indemnify  the  plaintiff  from  his  liabilities  to  the 
company,  a  court  of  equity  would  not  r;iise  an  implied  contract 
for  those  purposes,  and  the  bill  must  be  dismissed  with  costs 
Ibid. 


48  Railnays  by  Statute. 

purchaser  might  rescind  the  contract,  and  recover 
back  the  price  of  the  shares,  (^b)  And  semble,  gene- 
rally, as  what  the  scripholder  sold  in  any  such  case 
was  not  any  valid  legal  interest  in  the  undertaking, 
but  the  mere  hope  or  expectancy  of  obtaining  a  share 
in  case  of  the  company's  act  passing,  it  followed, 
that  if  such  hope  were  frustrated  by  reason  of  the 
subsequent  abandonment  of  the  project,  the  pur- 
chaser might  call  on  the  seller  to  repay  him  the  pur- 

(6)  Kempsnn  v.  Saunders,  2  C.  &  P.  366.  A  company  was 
formed  for  the  purpose  of  making  a  railway,  one  of  the  regula- 
tions of  which  was,  that  15,000  shares,  of  50^  each,  should  be 
raised,  and  then  that  application  should  be  made  to  parliament; 
and  another  was,  that  all  transfers,  to  be  valid,  were  to  be  ap- 
proved of  by  the  committee.  The  company,  after  continuing  for 
rather  more  than  a  year,  was  dissolved,  because  no  eligible  line 
of  road  could  be  found.  It  was  held  that  this  was  not  an  illegal 
company  under  the  act  6  Geo.  1,  c.  18,  and  that  a  party  who 
had  bought  certain  shares  in  it  might  recover  back  the  money 
paid  for  them  from  the  vendor,  who  had  not  complied  with  the 
last-mentioned  regulation  of  the  company,  on  the  ground  that  the 
consideration  had  failed  ;  and  this  although  the  purchaser  had 
not  handed  back  the  scrip  receipts  he  received.  So  also  where 
A.  contracted  to  buy  of  B.  certain  shares  in  a  public  company, 
the  deed  of  settlement  of  which  provided  that  the  assent  of  the 
directors  should  be  necessary  in  order  to  complete  the  title  of  the 
purchaser,  A.  paid  the  purchase  money  to  B.,  who  executed  the 
transfers,  but,  in  consequence  of  disputes  between  him  and  the 
directors,  was  unable  to  obtain  their  consent  to  the  transfer  of 
the  shares.  It  was  held,  that  B.  was  bound  to  procure  the 
assent  of  the  directors  to  the  transfer;  secondly,  that  on  his 
failure  to  do  so,  A.  was  entitled  to  rescind  tlie  contract,  and  to 
maintain  an  action  for  money  had  and  received,  to  recover  the 
purchase  money  ;  and  this  although  the  value  of  the  s!iares  had 
fallen:  and,  lastly,  that  the  return  of  the  transfers  was  not  a 
condition  precedent  to  bringing  the  nction.  Leeman  v.  Lloyd, 
Wilkiuson  V.  Lloyd,  23  L.  J.  Q.  B.  165. 


Rights,  8fC.  of  Company  for  making  a  Railway.  49 
chase  money,  and  the  latter  again  might  have  re- 
course to  the  party  from  whom  he  purchased,  and 
so  on  back  to  the  original  projectors,  (c) 

47.  Secondly.  This  state  of  things  would  not 
appear  to  have  been  materially  altered  by  the  late 
statute  for  the  registration  of  joint  stock  companies 
even  as  regards  companies  whose  formation  has 
commenced  (c?)  since  the   1st  of  November,  1844, 

(c)  Kempson  v.  Saunders,  4  Bing.  5;  S.C.2  Car.  &  P.  366. 
From  the  report  of  this  case  in  C.  &  P.  it  would  appear  that  by 
the  regulations  of  the  company  transfers  of  shares  were  not  to  be 
valid  without  the  assent  of  the  committee,  which  the  vendor  had 
not  obtained ;  but  as  that  point  is  not  noticed  in  the  judgment  of 
the  court  above,  perhaps  the  case  may  be  considered  an  autho- 
rity for  the  more  general  position  laid  down  in  the  text.  (See 
also  Watliins  v.  Huntley,  2  C.  &  P.  410,  note.)  On  this  view 
of  the  case  it  must,  it  is  conceived,  rest  upon  the  ground,  that  in 
the  case  of  a  sale  of  railway  scrip,  the  law  implies  a  warranty 
by  the  vendor  of  the  act's  passing,  &c.,  a  ground  which  would 
seem  to  be  highly  questionable.  (See  Fitzpatrick  on  Railway 
Rights,  &c.  p.  26.) 

(d)  Where  an  old  company  undertakes  the  formation  of  an 
extension  line  of  railway  subsequently  to  the  1st  November, 
1844,  this  is  not  to  be  regarded  as  a  new  company  formed  after 
that  date.  The  Leeds  and  Bradford  Railway  Company  were 
incorporated  by  act  of  parliament  previously  to  1st  November, 
1844,  Subsequently  to  that  period,  at  a  meeting  of  the  Leeds 
and  Bradford  Railway  Company,  it  was  resolved,  that  the  com- 
pany should  undertake  the  formation  of  an  extension  line  of 
railway  from  the  Leeds  and  Bradford  Railway  at  S.  to  C,  &c., 
and  that  in  order  to  raise  the  necessary  funds  an  additional 
capital  should  be  raised  by  the  creation  of  new  shares,  which 

D 


50  Railways  by  Statute. 

and  which  continue  only  provisionally  registered ; 
as  it  has  been  expressly  determined  that  the  26th 
section  (e)  of  the  above  act,  which   renders  illegal 

were  to  be  offered  in  the  first  place  to  the  proprietors  of  the  old 
company.  A  parliamentary  contract  was  accordingly  entered  into, 
which  recited  "  that  it  had  been  deemed  expedient  that  a  railway 
should  be  made  by  the  Leeds  and  Bradford  Railway  Company 
from  S.  to  C,  in  extension  of  and  uniting  with  the  parliamentary 
line  of  the  Leeds  and  Bradford  Railway."  An  act  was  eventually 
obtained  enabling  the  Leeds  and  Bradford  Railway  Company  to 
construct  the  contemplated  extension,  and  for  that  purpose  to 
raise  a  further  capital  by  new  shares,  &c.  The  shares  men- 
tioned in  the  above  resolutions  were  all  allotted  to  the  share- 
holders in  the  Leeds  and  Bradford  Railway  Company,  though, 
when  the  act  passed,  there  were  shareholders  in  the  extension 
line  who  were  not  shareholders  in  the  original  line.  It  was 
held  that  the  company  in  question  was  not  a  new  company 
formed  since  the  1st  November,  1844.  Shaw  v.  Holland,  4 
Railw.  Cas.  150;  S.  C.  24  Law  Journ.  Exch.  87. 

(e)  That  section  is  as  follows  :  "  That  no  shareholder  of  any 
joint  stock  company  completely  registered  under  this  act  shall 
be  entitled  to  receive  any  dividends  or  profits,  or  be  entitled  to 
the  remedies  or  powers  hereby  given  to  shareholders,  until  he 
shall  have  executed  the  deed  of  settlement  of  the  said  com- 
pany, or  some  deed  referring  thereto,  and  also  have  paid  up  all 
instalments  or  calls  due  from  him,  and  shall  have  been  registered 
in  the  registry  office  aforesaid ;  and  further,  that  it  shall  be  law- 
ful for  every  shareholder  who  shall  have  signed  such  deed,  and 
paid  up  such  instalments  or  calls,  and  shall  have  been  registered, 
and  he  is  hereby  entitled — 

To  be  present  at  all  general  meetings  of  the  company;  and 

also. 
To  take  part  in  the  discussions  thereat;  and  also, 


Rights,  ^c.  of  Company  for  making  a  Railway.  51 
contracts  for  shares  in  joint  stock  companies  not 
completely  registered,  and  subjects  the  parties  con- 
cerned in  them  to  a  penalty,  does  not  apply  to  cora- 

To  vote  in  the  determination  of  any  question  thereat,  and 
that  either  in  person  or  by  proxy,  unless  the  deed  of 
settlement  shall  preclude  shareholders  from  voting  by 
proxy ;  and  also, 
To  vote  in  the  choice  of  directors,  and  of  every  auditor  to  be 
elected  by  the  shareholders ; 
Subject  nevertheless  to  the  provisions  of  this  act,  and  of  the 
deed  of  settlement  of  the  company  or  other  special  authority, 
so  far  as  such  provisions  shall  either  regulate  or  restrict  the 
exercise  of  such  powers,  but  not  so  as  to  deprive  such  share- 
holders thereof;  and  further,  with  regard  to  subscribers  and 
every  person  entitled  or  claiming  to  be  entitled  to  any  share  in 
any  joint  stock  company  the  formation  of  which  shall  be  com- 
menced after  the  first  day  of  November  one  thousand  eight  hun- 
dred and  forty-four,  that  until  such  joint  stock  company  shall 
have  obtained  a  certificate  of  complete  registration,  and  until  any 
such  subscriber  or  person  shall  have  been  duly  registered  as  a 
shareholder  in  the  said  registry  oflRce,  it  shall  not  be  lawful  for 
such  person  to  dispose,  by  sale  or  mortgage,  of  such  share,  or 
of  any  interest  therein,  and  that  every  contract  for  or  sale  or  dis- 
posal of  such  share  or  interest  shall  be  void,  and  that  every  per- 
son entering  into  such  contract  shall  forfeit  a  sum  not  exceeding 
ten  pounds ;  and  that  for  better  protecting  purchasers  it  shall  be 
the  duty  of  the  directors  of  the  company  by  whom  certificates  of 
shares  are  issued  to  state  on  every  such  certificate  the  date  of  the 
first  complete  registration  of  the  company,  as  before  provided  ; 
and  that  if  any  such  director  or  officer  knowingly  make  a  false 
statement  in  that  respect,  then  he  shall  be  liable  to  the  pains  and 
penalties  of  a  misdemeanor." 

D  2 


52  Railways  hy  Statute. 

panics  of  the  description  of  railway  companies  in 
general,  viz.  companies  for  the  formation  of  rail- 
ways, harbours,  &c.,  which  cannot  be  carried  into 
execution  without  obtaining  the  authority  of  par- 
liament. Whatever  therefore  was  the  effect  of  a 
dealing  in  the  scrip,  &c.  of  such  companies,  and  the 
rights  and  liabilities  incidental  thereto  prior  to  the 
passing  of  the  act  in  question,  that  act,  it  would 
seem,  has  made  no  material  alteration  in  any  of 
these  respects,  (f) 

48.  Let  us  view  next  the  legal  position  of  the 
directors,  &c,  as  against  the  general  body  of  the  sub- 

(/)  Young  V.  Smith,  4  Railw.  Cas.  135;  S.  C.  24  Law 
Journ.  Exch.  81.  That  was  an  action  of  assumpsit  for  work 
and  labour,  &c. ;  the  defendant  pleaded  in  substance  that  the 
work  was  done,  ficc.  in  and  about  the  buying,  &c.  on  the  de- 
fendant's account  of  shares  in  certain  joint  stock  companies 
formed  subsequently  to  the  1st  November,  1844,  and  not  com- 
pletely registered  in  the  manner  pointed  out  by  the  7  &  8  Vict, 
c.  110.  Upon  demurrer  to  the  replication,  the  plea  was  held 
bad,  upon  the  ground  that  it  must  be  taken  upon  the  pleadings 
that  the  companies,  in  respect  of  the  sale,  &c,  of  shares  in  which 
the  action  was  brought,  were  of  the  species  which  required  the 
assistance  of  parliament  to  carry  them  into  eflecl,  and  that  as 
regarded  all  such  companies,  the  second  section  (see  this  section, 
ante,  p.  14)  of  the  statute  expressly  provided  that  the  act  should 
not  extend  to  them,eife/)f  as  thereinafter  specially  provided,  and 
that  in  the  26th  section  of  the  said  act,  which  was  the  one  that 
forbad  the  dealing  in  the  shares  of  joint  stock  companies  until 
complete  registration,  there  was  no  special  provision  with  re- 
ference to  companies  of  the  class  in  question. 


Rights,  (^'c.  of  Compamj  for  making  a  Railway.     53 

scribers.  The  former,  then,  are  entitled  to  insist 
upon  the  performance  of  all  covenants  on  the  part 
of  the  latter,  contained  in  the  provisional  instru- 
ments of  the  company. 

49.  Looking  at  the  terms  upon  which  the  sub- 
scribers pay  their  deposits,  they  can  have  no  right, 
it  is  conceived,  in  general  to  demand  a  return  thereof 
from  the  managers,  further  than  such  portion  as 
may  remain  after  discharging  the  expenses  incidental 
to  the  undertaking,  even  though  the  scheme  prove 
eventually  unsuccessful ;  unless,  indeed,  the  entire 
scheme  were  shown  to  be  a  mere  bubble,  and  the 
subscribers  generally  to  have  been  entrapped  into  it 
by  the  fraud  or  misrepresentation  of  the  managers. 

50.  If  the  directors  issue  more  shares  than 
they  are  authorised  by  their  powers  to  do,  they 
thereby,  it  is  conceived,  render  themselves  liable  to 
an  action  at  the  suit  of  a  bond  fide  holder,  who  is 
unable,  in  consequence,  to  procure  his  shares  to  be 
registered  on  the  passing  of  the  act.  (e)  Or,  if  it 
could  be  shown  that  they  had  conspired  to  fabricate 
such  additional  shares,  they  might  even  be  punished 
by  a  criminal  prosecution.  (/) 

51.  II.  Liabilities  to  Third  Parties.  Under 
this  head  of  our  subject  a  twofold  state  of  liability 
presents  itself  for  consideration:  1st,  That  o?  the 
managing  body ;  2nd,  That  of  the  general  body  of 
subscribers.  In  the  former  case  the  substantial  ques- 
tion seems  to  be,  to  whom  is  the  credit  given  ?  In 
general  it  is  the  committee  that  are  liable  to  pay  any 
persons  with  whom  contracts  are  made  for  the  bene- 

(e)  Diet.  arg.  in  Dalif  v.  Thompson,  10  M.  &  W.  315. 
(/)  Rex  V.  Mott,  2  C.  &  P.  521. 


54  Railways  by  Statute. 

fit  of  the  company  as  such,  unless  it  appear  that  the 
latter  contracted  to  be  paid  out  of  some  particular 
fund,  and  not  to  look  to  the  committee  for  pay- 
ment, [g)  Or  if  a  person  render  services  to  a  pro- 
visional company  in  expectation  of  being  elected  to 
some  office  under  the  company,  he  cannot  recover 
for  such  services,  though  the  scheme  eventually 
comes  to  nothing,  as  he  cannot  convert  what  was 
merely  anticipatory  into  a  money  contract.  So  if  a 
party  agree  to  render  certain  services  to  a  projected 
railway  company  at  a  stipulated  price,  and  to  look 
for  payment  for  any  thing  beyond  to  the  company 
when  it  is  established,  he  cannot  recover  against  his 
employers  any  thing  beyond  that  price,  (h)  In  like 
manner,  where  it  appears  that  the  party  seeking  to 
charge   the   directors  was  originally  employed,   not 

(g)  Kerridge  v.  Hessey,  9C.  &  P.  200;  Mnneypenny  v.  Hart- 
land,  1  C.  &  E«  352.  This  principle  of  the  liability  of  the 
managers  seems  now  completely  admitted  ;  so  much  so,  that  in 
an  action  against  the  projectors  of  an  intended  company,  tried 
at  the  Sittings  after  Michaelmas  Term,  1844,  the  defendants 
made  no  attempt  to  dispute  their  liability  generally,  but  paid 
money  into  court,  and  rested  their  defence  on  the  sufficiency 
of  the  sum  so  paid  in  to  meet  the  plaintiff's  claim.  See  also 
Rastrick  v.  Lambert,  MS.  Ca.  App.  post;  Fignoles  v.  Lefroy, 
MS.  Ca.  ibid.  The  effect  of  the  statute  (7  &  8  Vict.  c.  110),  it 
may  be  proper  to  remark,  on  the  liabilities  of  provisional  com- 
mittee-men, would  seem  to  be,  not  to  do  away  with  any  prior 
media  of  proof  on  this  point,  but  merely  to  furnish  in  the  re- 
gistry clear  and  unequivocal  evidence  as  to  who  are  committee- 
men A  party  therefore  who  expressly  or  impliedly  authorizes 
the  use  of  his  name  as  a  provisional  committee-man,  cannot 
afterwards  get  rid  of  the  liabilities  incidental  thereto  simply  by 
refusing  to  sign  the  written  consent,  &c.  which  is  necessary  to 
enable  the  company  to  register  him  as  such. 

{h)  So  ruled  in  Tottie  v.  Allen,  London  Special  Jury,  1844. 


Rights,  ^-c.  of  Company  for  making  a  Railway.     55 

by  the  directors,  but  by  some  third  party  who  called 
into  existence  the  directors,  it  becomes  a  question 
for  the  jury  whether  the  credit  was  not  rather  given 
to  such  third  party  than  to  the  directors. (i)  And  if 
a  party  can  be  shown  to  have  been  actively  con- 
cerned in  the  formation  of  a  company,  and  to  have 
called  into  existence  the  very  directors  whom  he 
seeks  to  charge,  that  renders  it  more  probable  that 
some  special  agreement  existed  between  the  par- 
ties. (  j) 

52.  Where  a  new  member  is  introduced  into  the 
directory,  he  is  not,  as  a  matter  of  course,  liable  on 
contracts  concluded  by  the  old  members  before  his 
entry  upon  the  office ;  though,  if  he  can  be  shown 
to  have  adopted  such  contracts,  that  may  make  him 
liable,  {k) 

53.  But  to  charge  a  party  as  a  manager,  there 
must  be  some  evidence  of  his  having  acted  as  such, 
or  at  any  rate  assented  to  become  such.  (/)  It  is  not 
enough,  therefore,  to  render  a  party  liable  as  a  ma- 
nager simply  to  show  that  he  on  one  occasion  ex- 
pressed his  willingness  to  become  a  director  in  case 
the  scheme  could  be  carried  out,  and  that  his  name 
appeared  in  a  prospectus  printed  for  private  circula- 
tion, without  any  thing  to  connect  the  party  with  that 
prospectus. (wj)  Neither  can  a  plaintiff  recover  for 
claims  prior  to  the  period  at  which  he  can  prove  the 
defendant  to  have  acted  as  a  director,  (n) 

(t)  Stephenson  v.  Radge,  MS.  Ca.  App.  post. 
(j)  Beetham  v.  Cook,  MS.  Ca.  App.  post, 
(fc)  Kerridge  v.  Hessey,  ubi  supra. 

(J)  Proof  of  his  being  registered  as  such  would  of  course  be 
sufficient.    See  ante,  n.  (^),  p.  54. 

(m)  Simon  v.  Fectni-yMS.  Ca.  post,  App. 

(n)  Elkinlou  V.  FerguiUDii,  Warwick  Summer  Assizes,  1841. 


56  Railways  by  Statute. 

54<.  A  party  who  is  once  proved  to  have  acted  as 
a  committee-man  is  not  released  from  the  liabilities 
incidental  to  that  character,  because  he  subsequently 
declines  to  take  shares  (o)  in  the  company,  or  be- 
cause he  ceases  to  act  as  a  member  of  the  com- 
mittee, (p)  To  effect  this  he  must  take  the  neces- 
sary steps  to  divest  himself  of  his  character  of 
director,  (q)  as  till  then  he  is  in  the  like  situation 
with  the  member  of  a  firm,  who,  after  he  has  seceded 
from  the  firm,  still  allows  his  name  to  remain  ex- 
posed over  the  shop  door,  (r)  And  even  this  may 
be  insufficient  where,  by  virtue  of  express  agreement, 
or  by  the  course  of  their  mutual  dealing,  an  actual 
partnership  has  been  created  between  himself  and 
the  other  members  of  the  committee ;  (s)  but  he 
must  still  further  procure  the  assent  of  those  mem- 
bers to  his  withdrawal.  A  party's  withdrawal  from 
the  committee  cannot,  it  should  seem,  operate  to 
terminate  his  character  as  a  subscriber,  or  conse- 
quently to  relieve  him  from  the  liabilities  incidental 
thereto. 

55.  Next,  as  to  the  liability  of  the  general  body 
of  the  subscribers.  Although  the  subscribers  are 
inter  se  partners,  yet  (looking  at  the  terms  upon 
which  they  become  such,  and  the  general  character 
of  the  partnership,)  it  would  not  seem  that,  by  simply 

(o)  Vignoles  v.  Lefroy,  MS.  Ca.  post,  App. 

(p)  Doubleday  v.  Hhisket,  7  Btng.  1 10. 

(9)  Semble,  by  removing  his  name  from  the  list,  and  adver- 
tising his  retirement  in  the  GazetJe,  aad  giving  express  notice  to 
tlie  parties  with  whom  the  company  have  been  in  the  habit  of 
dealing. 

(r)  Judgment  of  Tindal,  C.  J.  in  Doubleday  v.  Mtiskett,  ubi 
supra. 

(s)  See  Lewis  on  Liability  of  Subscribers,  &c.  p.  16. 


Rights,  <^c.  of  Company  for  making  a  Railway.     57 

acceding  thereto,  a  subscriber  must  necessarily  be 
taken  to  authorise  the  managing  body  to  pledge  his 
individual  credit  in  their  dealings  with  third  parties. 
It  may  be  questioned,  therefore,  whether  a  sub- 
scriber, as  such,  can  be  made  liable  for  the  contracts 
or  dealings  of  the  directors.  But  if  a  subscriber, 
in  point  of  fact,  interfere (^)  in  the  management  of 
the  concern,  or  hold  himself  out  as  giving  an  order, 
he  then  becomes  liable.  (?<) 

56.  There  is  one  particular  class  of  engage- 
ments (x)  that  the  provisional  committee  often  find 
themselves  called  on  to  conclude  either  before  or  in 
the  course  of  their  bill  passing  through  the  houses 
of  parliament,  and  which,  therefore,  seems  to  require 
special  mention  in  this  place,  viz.  contracts  for  the 
withdrawal  of  opposition  in  parliament  to  the  passing 
of  the  bill.  In  treating  of  this  class  of  contracts, 
the  main  question  to  be  considered  is  their  validity  ; 
in  other  respects,  viz.  as  respects  their  general  re- 
quisites, the  laws  of  construction,  and  the  incidents 
attaching  on  them,  they  would  seem  to  stand  on 
much  the  same  footing  as  any  other  description  of 
contracts.  The  question  thus  proposed  for  consider- 
ation may  be  regarded  under  three  points  of  view, 
as  respects,  1st,  The  validity  of  such  contracts  ge- 
nerally ;    2nd,  The  character   of  the  persons   with 

(t)  As  to  what  is  such  an  interference  as  to  have  this  effect, 
see  Harrison  v.  Heathom,  6  M.  &  Gr.  81  ;  Wood  v,  Duke  of 
Argyle,  22  L.  J.  C.  P.  96,  S.  C.  6  M.  &  Gr.  928  ;  Steigenberger 
V.  Carr,  3  M.  &  Gr.  191 ;  Dickenson  v.  Valjiy,  10  B.  &  C.  128 ; 
Lake  v.  Duke  of  Argyle,  23  L.  J.  Q.  B.  73. 

(«)  Bell  V.  Franch,  9  C,  &  P.  66. 

(i)  See  further  as  to  such  agreemeats,  post,  cap.  3. 

D  5 


58  Railways  by  Statute. 

whom  they  are  concluded  ;  3rd,  The  objects  that 
they  may  lawfully  be  made  to  embrace. 

57.  1st.  Then  it  is  clear  that  the  withdrawal  of 
opposition  in  parliament  is  a  good  consideration  for 
a  contract ;  (y)  every  landowner  has  a  right,  when 
his  property  is  threatened  to  be  taken  for  the  pur- 
poses of  a  railway,  to  make  the  best  bargain  that 
he  can  for  the  sale  of  his  land,  or  for  compensation 
for  injuries  to  it ;  and  there  is  not  in  such  a  case  any 
common  obligation  on  the  various  owners  of  pro- 
perty along  the  line  of  the  intended  railway  to  place 
themselves  on  the  same  footing  in  regard  of  the  pro- 
jectors, (s)  And  however  large  the  price  at  which 
the  projectors  choose  to  buy  off  the  party's  oppo- 
sition, however  disproportionate  to  the  value  of  the 
property  or  their  own  means,  it  constitutes  no  objec- 
tion per  se  to  the  contract,  (a) 

58.  2nd.  A  party  is  not  precluded  from  bargain- 
ing for  the  preservation  of  his  property  simply 
because  he  is  a  peer  or  member  of  parliament,  other- 
wise he  would  be  placed  in  a  worse  condition  than 
any  private  individual.  Unquestionably  if  it  were 
made  part  of  the  agreement  with  a  person  so  cir- 
cumstanced, that  he  should  either  give  or  withhold 
his  vote  for  or  against  a  particular  measure,  this 
would  render  the  bargain  corrupt  and  illegal,  and 
consequently  void ;  illegality,  however,  is  not  to  be 

(y)  Vanxhali  Bridge  Compaitii  v.  Earl  Spencer,  2  Mad.  356  ; 
S.  C.  Jac.  64. 

(:)  Lord  Howden  v.  Simpso,,,  10  A.  &  E.  793  ;  S.  C.  affirmed 
on  appeal  to  House  oi  Lords,  3  R.  Cas.  294  ;  Lord  Fetre  v. 
Eastern  dmiilies  Railway  Company,  1  R.  Cas.  462. 

(o)  Lord  Petre  v.  Eastern  Counties  Railiray  Company,  ubi 
supra. 


Rights,  8fc.  of  Company  for  making  a  Railway.     59 

presumed,  and  therefore  in  the  absence  of  proof  to 
the  contrary,  drawn  either  from  the  tenor  of  the 
agreement  or  from  extraneous  sources,  the  intend- 
ment would  be  (b)  that  the  party's  quality  of  peer, 
&c.  in  no  way  affected  the  bargain,  and  that  he  was 
left,  notwithstanding  the  supposed  agreement,  to 
exercise  his  free  judgment  and  give  or  withhold  his 
vote  according  to  his  conscience  upon  the  measure 
when  it  came  before  him  in  his  legislative  capacity. 
59.  3rd.  As  to  the  objects  for  which  a  party  may 
stipulate.  A  party  then  may  conclude  such  a  con- 
tract, not  simply  with  the  view  of  securing  himself 
an  adequate  recompense  for  the  threatened  injury  to 
his  property,  but  likewise  by  way  of  precaution 
against  the  projectors  coming  upon  it  at  all,  and  in 
order  to  drive  them  to  take  a  different  line.  Even 
though  the  payment,  upon  which  the  party  actuated 
by  this  double  motive  insists,  be  beyond  all  propor- 
tion to  the  amount  of  substantial  injury  that  the 
railway  is  calculated  to  inflict  on  his  property,  and 
must,  if  exacted,  exhaust  the  funds  of  the  company 
to  such  a  degree  as  to  render  them  incapable  of 
completing  their  project,  yet  this,  it  seems,  cannot 
be  taken  to  invalidate  the  contract,  (c)  Nay,  though 
a  party  stipulate  in  express  terms  for  the  projectors 
subsequently  endeavouring  to  deviate  their  line,  and 
bind  them  to  take  the  necessary  steps  for  the  pur- 
pose, the  agreement  is  not  on  that  account  invalid. 
Though,  in  this  case,  if  it  were  originally  intended 
by  the  parties  to  the  contract  to  conceal  the  part  of 

(6)  Lord  Howden  v.  Simpson,  ubi  supra  ;  see  also  Lord  Petre 
V.  Eastern  Counties  liailway  Company,  ubi  supra. 

(c)  Lord  Petre  v.  Eastern  Counties  Railway  Company,  ubi 
supra. 


60  Railways  by  Statute. 

it  touching  the  deviation  from  the  legislature,  it 
might  make  a  difference  ;  inasmuch  as  the  trans- 
action might  be  regarded  as  a  fraud  on  the  legis- 
lature, the  parties  having  agreed  to  make  a  false 
representation  to  that  body  by  stating  the  object  of 
the  adventurers  to  be  to  carry  one  line  into  effect, 
and  concealing  the  design  of  applying  for  another,  (d) 
}n  no  case,  it  is  conceived,  could  a  stipulation  of 
the  above  nature  be  open  to  be  impugned  on  the 
ground  of  its  being  a  fraud  on  the  other  landowners 
on  the  line  of  the  intended  railway,  even  though 
calculated  to  operate  in  some  respects  prejudicially 
to  their  interests,  there  being  no  common  obliga- 
tion, as  we  have  before  remarked,  on  the  different 
landowners  to  place  themselves  on  the  same  foot- 
ing, (d) 

60.  A  party  may  stipulate,  as  part  of  the  consi- 
deration for  his  withdrawing  his  opposition,  for  the 
payment  of  a  fixed  sum  of  money  at  a  given  time 
after  the  passing  of  the  act,  and  in  this  case  no  sub- 
sequent alteration  in  the  plans  of  the  projectors  can 
relieve  them  from  their  obligation,  (e)  even  though 
the  line  ultimately  adopted  by  them  altogether  avoids 
the  party's  land. 

(d)  Lord  Howden  v.  Simpson,  10  A.  &  E.  793 ;  S.  C.  3  R. 
Cas.  294,  affirmed  on  appeal  to  the  House  of  Lords. 

(e)  Lord  Enuden  v.  Simpson,  10  A.  &  E.  793  ;  5.  C.  3  R. 
Cas.  294,  affirmed  on  appeal  to  the  House  of  Lords. 


(     61     ) 


CAP.  II. 


OF    THE    ACT    OF    PARLIAMENT. 


Sect.  1.— Of  the  Validity  of  such  Act. 
2. — Of  the  Construction  of  the  Act. 


Sect.  1. — Of  the  Validity  of  the  Act. 

61.  In  general,  the  validity  of  an  act,  constituting 
a  railway  company,  cannot  be  disputed,  though  it 
may  possibly  be  otherwise,  where  the  act  is  ob- 
tained by  fraud  or  misrepresentation  practised  upon 
the  legislature.  But  where  the  false  representation 
is  embodied  in  the  act,  or  there  is  otherwise  a  mis- 
recital  of  any  important  particular,  («)  that,  it  may 
be  said,  is  no  ground  for  impugning  the  authority 
of  the  act,  inasmuch  as  it  can  hardly  be  competent 
for  a  party  to  question  the  truth  of  what  is  stated 
as  a  fact  in  the  act  of  parliament,  (a) 

(a)  See  judgment  of  Alexander,  C.  B.  in  Cromford  Railway 
Company  v.  Lacey,  3  Y.  &  J.  80,  where  the  point  was  raised 
though  not  decided,  as  the  case  ultimately  went  off  on  a  different 
ground. 


62  Act  of  Parliament. 

Sect.  2. — Of  the  Construction  of  a  Railway  Act. 

I. — Of  the  General  Principles  of  Construction. 
II. — Of  the  Principles  applicable  to  particular  Clauses. 
III. — Of  those  applicable  to  several  Acts  relating  to  the  same 
Company. 

62.  I.  Of  the  general  principles  of  construction 
applicable  to  the  entire  act.  A  railway  act  is  to  be 
viewed  as  a  bargain  between  the  adventurers  and 
the  public,  the  terms  of  which  are  expressed  in  the 
statute,  (b)  The  fundamental  rule  of  construction 
accordingly  in  all  such  cases  is  established  to  be 
this,  viz.  that  the  adventurers  can  claim  nothing, 
which  is  not  clearly  given  them  by  the  statute ;  on 
this  may  be  engrafted  what  follows,  as  a  necessary 
corollary  from  it,  viz.,  that  any  ambiguity  in  the 
terms  of  the  contract  must  operate  against  the  ad- 
venturers, and  in  favour  of  the  public,  (e)  Although 
the  meaning  of  a  railway  act  should  be  clear  and 
explicit,  the  criteria,  it  may  be  remarked,  by  which 
that  meaning  is  to  be  ascertained,  are  the  same  as  in 
the  case  of  any  other  instrument,  viz.  the  language, 
and  the  sense  or  reason  of  the  law  as  collected  from 
the  entire  act.  As  a  general  rule,  the  language  is 
to  be  understood  in  its  ordinary  sense ;  but  if  such 
a  construction  lead  to  an  absurdity,  or  is  manifestly 
repugnant  to  the  express  or  implied  intention  of  the 

(6)  Blakemnre  v.  Glamorganshii-e  Canal  Company^   1  My.  5c 
K.  154. 

(c)  StourMdge  Canal  Company  v,  Wheeley,  2  B.&  Ad.  793 
Priestly  v.  Fovlds,  2  Railway  Cas.  441 ;  S.  C.  2  M.  &  G.  175  ; 
see  also  Parker  v.  Great  Western  Railway  Company,   7  Scott's 
N.  R.  835 ;  S.  C.  22  Law  Journ.  C.  P.  105. 


Construction  of  Act.  63 

legislature,  then  the  grammatical  sense  of  the  words 
may  be  modified,  to  obviate  such  absurdity  or  cure 
such  repugnance,  {d) 

63.  Where  a  railway  act,  as  is  usually  the  case, 
concludes  with  the  legislative  declaration  that  it  is 
to  be  taken  as  a  public  act,  and  judicially  taken 
notice  of  as  such  by  all  judges,  &c.,  it  cannot  be 
treated  as  a  mere  private  assurance,  more  especially 
considering  its  general  public  nature,  manifested  in 
every  section,  (e) 

64.  A  party  interested  in  the  subject-matter  of 
a  private  act  of  parliament,  is  liable  to  have  his 
rights  affected  by  its  provisions,  though  it  may  have 
been  introduced  and  past  without  due  notice  being 
given  to  him.  (/) 

Q>5.  II.  Of  the  rules  of  construction,  ajjpUcable  to 
some  of  the  more  important  provisions  usually  found 
in  railrvay  acts,  and  herein.  1st,  of  the  porvcr  of  taking 
land.  A  power  of  this  nature,  calculated  to  ope- 
rate in  a  manner  so  highly  derogatory  to  private 
property,  must,  it  seems,  receive  a  strict  interpre- 
tation. If,  in  the  supposed  exercise  of  such  a 
power,  the  company  enter  upon  or  take  any  man's 
land,  they  must  clearly  establish  their  authority  to 
do  so ;  and  if  the  words  of  the  statute  on  which 
they  rely  are  ambiguous,  every  presumption  is  to  be 

(d)  Rex  V.  Pease,  4  B.  &  Ad.  41  ;  Turner  v.  The  Sheffield 
and  Rotherham  Railway  Company,  10  M.  &  W.  425 ;  S.  C.3 
Railway  Cas.  230. 

(e)  Per  Shadwell,  Vice-Ch.,  Hargreaves  v.  Lancaster  and 
Preston  Junction  Railway  Company,  1  Railw.  Cas.  430. 

(^f)  'Edinburgh,  ii;c.  Railway  Company  \,  Wauchope,  8  CI,  &c 
Fin.  711:  5.  C.  3  R.  Cas.  232. 


64  Act  of  Parliament. 

made  against  the  company,  and  in  favour  of  private 
property,  {g) 

QQ.  So  likewise  the  provisions  for  the  taking  of 
toll  by  the  company  must  be  couched  in  clear  and 
unambiguous  language  ;  or,  if  the  words  fairly  admit 
of  different  meanings,  then  that  meaning  must  be 
adopted  which  is  most  favourable  to  the  interests  of 
the  public,  and  most  against  that  of  the  company, 
because  the  company,  in  bargaining  with  the  public, 
ought  to  take  care  to  define  distinctly  what  payments 
they  are  to  receive,  and  because  the  public  ought 
not  to  be  charged,  unless  it  be  clear  that  it  was  so 
intended  by  the  legislature,  {h) 

67.  On  the  other  hand,  clauses  providing  com- 
pensation  for  parties  whose  property  is  injured  by 
the  railway,  ought,  it  seems,  to  be  liberally,  and  not 
strictly  construed,  so  as  to  advance  the  remedy  in- 
tended by  the  legislature  in  making  such  provi- 
sions. (?) 

68.  Some  forms  prescribed  for  the  internal  go- 
vernment of  a  railway  company,  may  be  imperative, 
and  others  only  directory,  (/c) 

(g)  Scales  V,  Pickering,  4  Bing.  448  ;  Webb  v.  The  Man- 
Chester  and  Leeds  Railway  Company,  4  My.  &  Cr.  120  ;  S.  C. 
1  Railway  Cas.  599,  per  Lord  Cottenham,  Ld.  Ch. 

(/(.)  See  Cildartv.  Gladstone,  11  East,  675  ;  Barrett  \.  The 
Stockton  and  Darlington  Railway  Company,  2  Railw.  Cas.  465  ; 
S.  C.  2  M.  &  Gr.  134  ;  in  error,  3  M.  &  G.  956. 

(i)  Reg.  V.  The  pMstern  Counties  Railway  Company,  2  A.  6c 
E.  N.  S.  347  ;  S.  C.  2  Railway  Cas.  752  ;  Bell  y.  Hull  and 
Selby  Railway  Company,  6  M.  &  W.  699  ;  S.C.2  Railway  Cas. 
286. 

(/c)  Judgment  of  Wigram,  Vice  Ch.  in  Foss  v.  Harbottle,  2 
Hare,  495.  See  further  as  to  this  distinction  between  directory 
and  imperative  clauses  in  railway  acts,  post,  cap.  3  and  cap.  7. 


Construction  of  Act.  65 

69.  III.  Of  the  rules  of  construction  applicable  to 
several  acts  relative  to  the  same  company.  It  must 
often  happen,  that,  from  some  change  in  the  pur- 
poses of  the  company,  the  lapse  of  time,  &c.,  a  fur- 
ther act  or  acts  becomes  requisite,  in  order  to  vary 
or  extend  the  powers  given  by  the  original  act.  In 
this  case,  the  subsequent  and  prior  acts,  being 
framed  upon  one  system,  having  one  object  in  view, 
and  being  in  pari  materia,  may  be  construed  toge- 
ther as  if  they  were  one  law. 

The  subsequent  act,  instead  of  particularizing 
the  powers  and  capacities  that  it  intends  to  confer, 
ordinarily  embodies  the  provisions  of  the  prior  act 
by  a  general  clause  of  reference.  The  fair  con- 
struction to  be  put  upon  such  a  clause  is,  that  all 
the  general  powers  and  provisions  given  and  made 
in  the  former  act  shall  be  virtually  incorporated  in 
the  latter,  but  not  such  as  are  of  a  special  nature, 
and  have  a  peculiar  application  to  the  subject-matter 
of  the  prior  act.  (I) 

70.  A  subsequent  act,  where  it  is  so  intended, 
may  have  the  effect  of  reviving  proceedings  taken 
under  a  prior  act,  or  even  of  ratifying  and  healing 
what  is  irregular  in  the  same,  (am)  To  have  this 
latter  effect,  however,  the  later  act  must  contain  a 
clear,  direct,  and  particular  ratification  of  such  pro- 
ceedings.     A   railway   act   enacted   that    no    calls 

(/)  Sirhowy  Tramroad  Company  v.  Jones,  and  Hnmfray  v. 
Jones,  3  A.  &  E.  640,  n.  (a);  Alt.  Gen.  v.  Eastern  Counties 
and  North  Eastern  Railway  Company,  2  Railw.  Cas.  832  ;  S.  C. 
10  M.  &  VV.  263. 

(m)  The  Stratford  and  Moreton  Railway  Company  v.  Stratton, 
2  B.  &  Ad.  518;  see  also  Smith  v.  Goldsworthy,  4  A.  &  E. 
N.  S.  430. 


66  Act  of  Parliament, 

should  be  made  at  an  interval  of  less  than  two 
months  from  each  other,  and  that  none  of  the  powers 
of  the  act  should  be  put  in  force  till  the  sum  of 
£ZS,5(iO  was  subscribed.  The  committee  began 
the  works  before  the  above  sum  was  subscribed, 
and  made  a  single  order  for  the  payment  of  various 
calls  at  intervals  of  two  months.  A  subsequent  act 
noticed  in  a  recital,  that  the  capital  of  ,£33,500  had 
not  been  subscribed,  but  that  the  company  had  pro- 
ceeded in  their  works,  had  incurred  debts,  &c.,  and 
that  a  certain  sum  was  due  from  defaulters  in  pay- 
ment of  calls  ;  it  at  the  same  time  provided  for  the 
carrying  on  the  works,  and  making  further  calls, 
and  enacted  that  the  powers  of  the  former  act  (ex- 
cept where  expressly  altered)  should  remain  vested 
in  the  company,  though  the  ,£33,500  had  not  been 
subscribed.  It  was  held  to  ratify  what  had  been 
done  in  breach  of  the  latter  enactment,  but  not  to 
recognize  the  calls  as  valid,  (n) 

(n)  The  Stratford  and  Moreton  Railway  Company  v.  Stratton, 
2  B.  &  Ad.  518 ;  see  also  Smith  v.  Goldsworthy,  4  A.  &  E. 
N.  S.  430. 


(     67     ) 
CAP.  III. 

OF  THE  COMPANY,    AS    CONSTITUTED    UNDER   THE    ACT. 


Part  I. — Of  the  Legality  of  a  Railway  Company. 
II. — Of  the  Constitution  of  a  Railway  Company. 


Part  I. 

Of  the  Legality  of  a  Railway  Company. 

71.  No  question  can  in  general  be  raised  about 
the  legality  of  a  railway  company,  inasmuch  as  it 
derives  its  existence  from  the  act  of  the  legislature. 
But,  supposing  the  act  constituting  a  company  to  be 
obtained  by  fraud  or  misrepresentation  practised  on 
the  legislature,  the  company,  which  is  the  mere 
creature  of  the  act,  cannot,  it  is  conceived,  be  taken 
to  have  any  legal  authority  or  even  existence,  at 
least  as  against  those  who  are  not  parties  to  the 
fraud  or  misrepresentation,  (a)  But  the  legality  of 
a  railway  company  cannot,  as  we  have  already  had 
occasion  to  notice,  be  impugned,  on  the  ground  that 
a  great  proportion  of  the  subscriptions,  on  the  faith 
of  which  the  act  is  suffered  to  pass,  are  made  in  trust 
for  the  company,  and  upon  a  secret  understanding 
that  the  parties  making  them  are  not  to  be  liable  to 
the  responsibilities  imposed  by  such  act  on  the  share- 
holders in  general,  (b) 

(a)  See  Cromford  Railway  Company  v.  Lacey,  3  Y.  &  Jer.  80. 
(fe)  See  ante,  p.  38  et  seq. 


(     68     ) 

Paut  II. 

Of  the  Constitution  of  a  Railway  Company. 

Sect.  1 . — Of  the  Constitution  of  the  Company  viewed  generally. 
2. — Of  the  Company  viewed  in  its  External  Relations. 
3. — Of  the  Company  viewed  in  its  Internal  Relations. 
4. — Of  the  Capital  Stock  of  the  Company. 

Sect.  1. — General  View  of  Constitution  of  Company. 

72.  Looking  at  the  general  features  of  acts  of 
this  kind,  in  respect  of  which  they  will,  upon  exa- 
mination, be  found  to  bear  a  very  close  resemblance 
to  each  other,  (and  further  than  this,  our  review 
cannot,  for  very  obvious  reasons,  be  carried,)  a  rail- 
way company  may  be  defined  to  be  a  collection  of 
many  individuals  united  into  a  body  corporate  for 
the  making  and  maintaining  of  a  railway  with  all 
necessary  works,  &c.,  and  for  the  better  prosecu- 
tion of  this  design,  endowed  by  the  policy  of  the 
law,  not  merely  with  a  modified  capacity  of  acting 
in  several  respects  as  an  individual,  particularly  of 
taking  and  granting  property,  of  contracting  obli- 
gations, of  suing  and  being  sued,  of  enjoying  pri- 
vileges and  immunities  according  to  the  scope  of  its 
institution,  or  the  powers  conferred  upon  it,  either 
at  the  time  of  its  creation,  or  at  any  subsequent 
period  of  its  existence,  (c)  but  likewise  with  extra- 
ordinary powers,  more  peculiarly  characteristic  of 
such  an  undertaking,  viz.  powers  of  taking  and 
dealing  with  land,  houses,  &c.,  of  internal  self- 
government,  and  of  raising,  by  the  mutual  subscrip- 

(f)  See  Kydd,  Intro.  13. 


Constitution  of  a  Railway  Company.  69 

tion  of  its  individual  members,  a  certain  amount  of 
capital,  divided  into  a  given  number  of  transferable 
shares.  As  a  corporate  body,  a  railway  company 
enjoys  all  the  ordinary  incidents  of  such  a  body, 
(subject,  of  course,  to  such  express  provisions  on 
the  subject  as  are  contained  in  their  act  of  incorpo- 
ration, and  to  the  limitations  thereby  engrafted  on 
the  general  law  of  corporations)  ;  viz.  1st,  to  have 
perpetual  succession;  2nd,  to  sue  or  be  sued,  grant 
or  receive  &c,,  by  its  corporate  name;  Srd,  to 
purchase  lands,  and  hold  them  for  the  benefit  of 
itself  and  its  successors ;  4th,  to  have  a  common 
seal,  for  a  corporation  being  an  invisible  body,  cannot 
manifest  its  intentions  by  any  personal  act  or  oral  dis- 
course, it  therefore  acts  and  speaks  only  by  its  com- 
mon seal ;  5th,  to  make  bye  laws  or  private  statutes 
for  the  better  government  of  the  corporation,  which 
are  binding  on  itself,  unless  contrary  to  the  laws 
of  the  land,  and  then  they  are  void,  (d) 

In  order  however  to  develope  fully  the  force  of 
the  above  definition,  let  us  proceed  to  consider  its 
main  branches  somewhat  more  in  detail.  For  this 
purpose,  a  railway  company  may  be  regarded  in 
three  principal  points  of  view;  in  regard,  1st,  of  its 
external  relations  ;  2ndly,  of  its  internal  relations  ; 
Srdly,  of  its  capital  stock. 

(d)  Bl.  Com.  vol.  i.  475,  476. 


70         Company  as  constituted  under  the  Act. 

Sect.  2. — Of  a  Railway  Company  viewed  in  its 
External  Relations. 

Sub-Sect.  1. — Of  the  Mode  of  Action  prescribed  by  its  Act  to 

the  Company, 
2. — Of  the  Powers,  Capacities  and  Incapacities  of  the 

Company. 
3. —  Of  the  Rights  of  the  Company,  incidental  to  such 

Powers. 
4. —Of  the  Duties  of  the  Company. 
5.— Of  its  Burthens. 
6. — Of  its  Public  Acts  and  Liabilities. 
7. — Of  Compensation. 


Sub-Sect.  1. — Of  the  Mode  of  Action  prescribed  to 
a  Railway  Company. 

1. — Of  the  Organs  through  which  it  must  act. 
2. — Of  the  Forms  to  be  observed  by  the  Company  in  acting,  viz. 
in  regard  of  Contracts,  &c. 

73.  First,  Of  the  proper  organs  through  which  a 
railway  company  may  act  as  such.  These  in  general 
are  threefold:  1st,  the  general  assembly  of  the  com- 
pany ;  2ndly,  the  board  of  directors ;  Sdly,  a  duly 
constituted  agent,  &c. 

74.  1st,  The  resolution  of  a  public  assembly  of 
the  company,  in  matters  on  which  it  is  competent 
for  the  assembly  to  resolve,  operates  as  the  act  of 
the  company,  and  is  accordingly  binding  on  the  entire 
corporate  body. 

This,  however,  supposes  that  in  all  substantial 
respects  the  resolution  pursues  the  requisitions  of 
the  act  by  which  the  company  is  constituted,  as,  for 
instance,  in  respect  of  time,  place,  persons,  &c. 
If,  therefore,  the  meeting,  at  which  such  resolution 


Constitution  of  a  Railway  Company.  71 

is  passed,  is  improperly  convened;  or  if  such  meet- 
ing consist  not  of  a  proper  number  of  proprietors, 
or  of  members  not  properly  qualified ;  or  the  votes 
at  such  meeting  are  not  taken  according  to  the  me- 
thod prescribed  by  the  act ;  the  resolution  cannot 
be  taken  to  operate  as  the  public  act  of  the  com- 
pany in  its  politic  capacity,  (a)  Prima  facie,  how- 
ever, it  must,  it  seems,  be  presumed,  at  any  rate  as 
against  the  company,  that  the  forms  required  by  the 
act  have  been  complied  with,  and  therefore  it  lies 
upon  it,  where  it  seeks  to  avail  itself  of  any  default 
in  this  respect,  to  give  strict  proof  thereof,  (b)  Not 
only  must  the  resolution  itself  be  duly  taken,  but 
likewise  where  ulterior  steps  are  necessary  to  give 
it  effect,  those  steps  must  either  appear  to  be  pre- 
scribed by  the  resolution  itself,  or  be  shown  to  fall 
within  the  scope  and  purview  of  the  authority  of 
the  parties  to  whom  it  is  left  to  carry  out  the  reso- 
lution, (c) 

75.  2d.  The  acts  of  the  directors  within  the  scope  of 
their  authority  are  no  less  binding  on  the  company 
than  the  acts  of  a  general  assembly.  As  a  general 
rule,  however,  this  supposes  that  a  sufficient  number 
of  directors  to  constitute  a  quorum  concur  in  the 
act,  and  that  those  so  concurring  are  duly  elected 
and  qualified.  If  these  requisites  are  satisfied,  the 
fact  of  there  being  vacancies  in  the  directory,  which 
have   not  been  filled  up  pursuant  to  the  authority 

(a)  Bill  V.  The  Manchester  and  SalJ'ord  Water  IVofki  Com' 
pany,  5  B.  &  Ad.  874  ;  Clarke  v.  Imperial  Gas  Light  and  Coke 
Company,  4  B.  &  Ad.  324. 

(fc)  Clarke  v.  Imperial  Gas  Light  and  Coke  Company,  ubi 
supra. 

(c)  See  cases  cited  ia  note  (a)  supra. 


72  Company  as  constituted  under  the  Ad. 

given  for  that  purpose  to  the  directory,  would  seem 
to  afford  no  ground  for  impugning  (c?)  the  validity  of 
a  transaction.  And  even  supposing  the  directors 
not  to  be  duly  elected  or  qualified,  it  may  be  ques- 
tioned whether,  if  the  shareholders  choose  to  allow 
parties  to  act  in  the  capacity  of  directors,  they  have 
a  right  to  turn  round  and  say  that  such  parties  are 
not  duly  qualified,  &c.  (e). 

76.  3rd,  A  railway  corrtpany  may  act  through  the 
medium  of  its  officers,  agents,  or  servants ;  and  the 
acts  of  these  parties,  where  they  fall  within  the 
scope  of  their  authority,  are  as  much  the  acts  of  the 
company  as  if  done  under  the  express  authority  of 
a  general  meeting.  The  authority  for  this  purpose 
must,  however,  in  general,  be  given  by  a  deed,  and 
under  the  common  seal  of  the  company.  (/) 

77.  Secondly,  Of  the  forms  to  be  observed  by  the 
company  in  acting;  and  herein,  1st,  of  the  name, 
2ndly,  of  the  common  seal. 

78.  And  1st,  Of  the  name  of  the  company.  In 
incorporating  a  railway  company,  the  legislature 
invariably  bestows  on  it  a  name,  by  which  it  may  be 
known  and  distinguished.  Such  name  is  the  very 
being  of  its  politic  capacity,  the  knot  of  its  combi- 
nation, without  which  it  cannot  perform  its  corporate 

((f)  See  Thames  Haven  Dock  and  Railwaii  Company  v.  Rose, 
4  M.  &  Gr.  .552  ;  S.  C.  21  Law  Journ.  C.  P.  90. 

(e)  Thames  Haven  Dock  and  liailway  Company  \.  Hall,  5  M, 
&  Gr.  287,  judgment  of  Tlndal,  C.  J.  As  to  provisions  of  Com- 
panies' Clauses  Consolidation  Act  on  this  point,  see  Act,  s.  99, 
post,  App. 

(f)  See  Yarborough  v.  The  Bank  of  England,  16  East,  6  ; 
Smith  V.  The  Birmingham  Gas  Company,  1  A.  &  E.  528,  and 
cases  there  cited  ;  Thames  Haven  Dock  and  Railway  Company  v- 
Hall,  ubi  supra. 


Mode  of  Action  of  Railway  Company.  73 

functions,  {g)  It  is  in  this  name  consequently  that 
it  must  take  and  grant,  sue  and  be  sued,  and  gene- 
rally do  all  corporate  acts.  (Ji) 

79.  2dly,  Of  the  common  seal  of  the  company. 
It  is  one  of  the  incidents  of  a  railway  company  as  a 
corporate  body  to  have  a  common  seal,  which  consti- 
tutes as  it  were  its  mouthpiece  and  organ,  and  by 
which  alone  consequently  the  company  as  such  can 
in  general  act  or  speak.  This  rule  does  not  apply 
to  a  resolution  of  the  company,  which  is  not  intended 
of  itself  to  be  operative,  but  only  to  serve  as  the 
groundwork  of  some  ulterior  act  on  the  part  of  the 
company  ;  but  is  enough  in  such  a  case  if  the  latter 
only  is  under  seal.  (?) 

The  above  rule  must  moreover  be  understood  as 
subject  not  only  to  certain  established  exceptions 
which  have  gradually  engrafted  themselves  on  the 
general  law  of  corporations,  and  which  would  seem 
to  apply  as  well  to  the  case  of  a  railway  company  as 
of  any  other  species  of  corporate  body,  but  likewise 
to  such  as  are  usually  made  by  the  company's  act 
of  incorporation.  To  these  exceptions,  however, 
we  shall  have  occasion  hereafter  more  particularly 
to  advert. 

Although  a  railway  company  cannot  in  general 
perform  any  corporate  function,  except  by  the  in- 
strumentality of  its  common  seal,  still  the  concur- 

{g)  Gilb.  Hist.  C.  P.  225. 

(h)  See  B.eg.  on  the  prosecution  of  the  Mayor,  ^c.  of  Maiden- 
head V.  Great  Western  Railway  Company,  8  Jur.  107  ;  S.  C.  I 
D.  &  L.  P.  C.  874  ;  5  A.  &  £.  N.  S.  597  ;  Reg.  v.  West,  1  A. 
&  E.  N.  S.  826  -,8.0.2  R,  Cas.  613. 

(i)  Clarke  v.  Imperial  Gas  Light  and  Coke  Company,  4  B.  6c 
Ad.  315. 


74         Company  as  constituted  under  the  Act. 

rence  of  the  company  need  not  be  shown  in  each 
particular  act  of  seahng  ;  but  it  is  enough  if  the  seal 
be  proved  to  be  applied  by  the  parties  having  the 
legal  custody  of  it,  that  is,  under  the  general  provi- 
sions of  a  railway  act,  the  directors.  (_;') 


Sub-Sect.  2.  —  Of  the   Powers,    Capacities,    and 
Incapacities  of  a  Railway  Company. 

1. — Of  the  general  Nature  and  Extent  of  the  Powers  of  the 

Company. 
2. — Of  their  Suspension,  Cesser,  or  Determination. 
3.~0f  their  Revival. 

80.  I.  Of  the  nature  and  extent  of  the  powers  of  a 
railway  company. — Considered  in  regard  of  their 
nature  and  extent,  the  powers  of  a  railway  company 
may  be  classed  under  two  heads,  1st,  principal 
powers,  and  2ndly,  accessory  or  incidental  powers, 
which  are  only  given  for  the  sake  of  the  former. 

81.  Rules  of  Construction.  Before  descend- 
ing to  a  more  exact  investigation  of  either  class  of 
powers,  it  may  be  proper  to  say  a  few  words  of  the 
rules  of  construction,  applicable  to  the  interpreta- 
tion of  the  powers  of  a  railway  company  generally. 
Railway  acts  then,  as  we  have  already  had  occasion 
to  remark,  are  to  be  regarded  as  parliamentary  con- 
tracts, made  by  the  legislature  on  behalf  of  all  the 
persons  interested  in  the  performance  of  any  thing 
to  be  done  under  them,  {k)    It  follows,  that  the  rail- 

(j)  See  Hill  v.  Manchester  and  Salford  Water  Works  Com- 
jmny,  5  B.  &  Ad.  866. 

(h)  Blakemore  v.  Glamorganshire  Canal  Company,  1  My.  & 
K.  154. 


Powers  of  a  Railway  Company.  75 

way  companies  constituted  by  those  acts  are  to  be 
kept  strictly  within  the  limit  of  the  powers  for  which 
they  have  bargained  with  the  legislature.  Every 
owner  of  land  or  other  property,  whose  interests  are 
to  be  affected  by  the  exercise  of  such  powers,  has  a 
right  to  require  that  they  shall  be  rigidly  and  strictly 
carried  into  effect  as  regards  the  subject-matter,  the 
time,  and  the  mode  of  their  execution.  He  has  a 
right  to  insist  that  only  that  precise  portion  of  his 
property  shall  be  dealt  with  by  the  company  that  is 
specified  in  the  act,  and  that  too  for  the  purposes 
and  in  the  manner  authorized  by  the  act,  and  in  case 
of  a  company  going  beyond  their  powers  in  any  of 
these  respects,  he  may  apply  to  a  Court  of  Equity 
to  restrain  them  by  injunction.  (Z) 

82.  Principal  Powers.  After  this  brief  notice 
of  the  general  rules  of  construction  applicable  to  the 
class  of  powers  in  question,  we  may  now  proceed  to 
advert  more  particularly  to  their  nature  and  distinc- 
tive peculiarities. 

First,  then,  of  what  we  have  above  termed  Prin- 
cipal Powers.  The  fundamental  powers  usually 
given  by  the  legislature  to  a  railway  company,  are 
those  of  making  and  maintaining  a  railway  or  rail- 
ways, (as  the  case  may  be),  with  all  proper  works 
and  conveniences  in  the  course  and  over  the  lands 
prescribed  by  the  act  of  parliament.  The  above 
line  of  railway  in  general  is  not  to  exceed  a  given 
breadth,  unless  where  a  greater  breadth  is  required 
for  cuttings  or  embankments.  The  company,  how- 
ever, are  not  to  be  precluded  from  carrying  out  the 

(/)  Lee  V.  Milner,  2  Y.  &  Coll.  618,  judgment  of  Alderson,  B. 
E  2 


76         Company  as  constituted  under  the  Act. 

railway  in  the  parliamentary  line  by  reason  of  any 
unintentional  error  or  omission  in  the  description 
of  the  property  given  in  the  schedule,  but  may 
apply  to  two  justices  to  certify  to  such  error  or 
omission  arising  from  mistake,  (m)  The  effect  of 
the  certificate,  when  granted,  is  to  rectify  the  mis- 
take or  omission  in  the  schedule  to  the  act  itself, 
and  to  extend  the  operation  of  the  statute  to  the 
several  lands,  &c.  included  in  the  certificate,  so  as 
to  place  them  precisely  in  the  same  situation  as  if 
they  had  been  inserted  in  the  original  schedule  of 
the  act.  (n)  Where  the  justices  certify  for  a  house, 
a  yard  and  garden  may  pass  under  that  description, 
where  such  yard  and  garden  are  in  point  of  fact 
parcel  of  and  included  in  the  description  of  the 
house,  and  occupied  therewith  as  such  parcel,  (n) 
Though  the  jurisdiction  to  certify  is  given  to  the 
justices  in  case  of  a  dispute,  as  to  any  mistake  or 
omission,  &c.,  a  certificate,  granted  in  pursuance  of 
the  above  power,  is  not  bad  for  omitting  to  aver  ex- 
pressly the  existence  of  such  dispute,  the  certificate 
itself,  and  the  fact  of  the  application  for  it,  showing 
a  dispute,  and  being  therefore  in  themselves  evidence 
of  the  jurisdiction,  (w) 

83.  As  the  above  power  is  only  to  make,  &"c.  a 
railway  in  a  particular  line,  it  cannot  of  course  be 
taken  to  authorize  any  departure  from  that  line. 
It  would  not  therefore  per  se  justify  the  attempting 
a  deviation  from  the  line  prescribed  by  parliament. 

(to)  As  to  analogous  provision  of  Railways  Clauses  Consoli- 
dation Act  (8  Vict.  c.  20),  see  act,  s.  7,  post,  App. 

(n)  Taylor  v.  Ckmson,  2  A.  &  E.  N.  S.  978  ;  S.C.  Z  Rail- 
way Cas.  65. 


Powers  of  a  Railway  Company.  77 

And  not  only  the  party  whose  property  is  imme- 
diately affected  by  the  deviation  may  make  it  the 
ground  of  complaint,  but  even  a  distant  landowner, 
where  the  latter  is  really  and  substantially  pre- 
judiced thereby,  (o) 

But  where  a  railway  act,  after  prescribing  the 
general  line  of  the  railway,  laid  the  company  under 
a  still  further  restriction  as  to  a  part  of  the  line, 
viz.  by  requiring  that  it  should  pass  between  two 
streets,  A.  and  C,  at  a  given  distance  off  one  or 
other,  or  in  case  they  came  within  that  distance  of 
either  or  both  streets,  they  were  to  purchase  the 
space  less  than  such  distance,  and  half  of  either  or 
both  streets,  as  the  case  might  be,  and  the  company 
adopted  the  latter  alternative,  and  purchased  street 
A.,  which  lay  in  the  parliamentary  line,  and  made 
the  railway  over  it,  but  in  that  line,  this  was  held  to 
be  no  deviation,  (p) 

84.  To  obviate  the  inconveniences  that  might 
arise  from  the  rigid  construction  thus  put  upon  the 
powers  of  a  railway  company,  the  act  generally 
contains  a  power  for  the  company  to  deviate  from 
their  original  line  within  certain  limits,  (q)  These 
limits  are  usually  twofold,  viz.  1st,  the  new  line  is 
limited  to  go  only  a  certain  distance  off  the  original 
one  ;  and  2nd,  the  deviation  is  not  to  extend  into 
lands  not  mentioned  in  the  book  of  reference. 

(o)  Lee  V.  Milner,  ubi  supra,  judgment  of  Alderson,  B. 

(p)  Taylor  v.  Clemson,  ubi  supra. 

(g)  As  to  the  limit  of  the  deviation  permitted  to  railway 
companies,  under  the  Railways  Clauses  Consolidation  Act  (8 
Vict.  0.20),  from  the  levels,  gradients,  curves,  &c.  described 
in  the  plan  or  section,  see  act,  ss.  11,  12,  14,  post.  Appendix. 
As  to  lateral  deviations,  see  ib.  s.  15. 


78         Company  as  constituted  under  the  Act. 

With  regard  to  the  former  of  the  two  restrictions, 
the  deviation  that  it  permits  must,  it  seems,  be  mea- 
sured by  the  distance  between  the  two  points  con- 
stituting the  media  fila  of  the  parliamentary  and 
substituted  lines.  So  long  accordingly  as  this  dis- 
tance does  not  exceed  the  space  prescribed  by  the 
act  for  the  deviation,  measuring  horizontally,  the 
company  are  within  the  limits  of  their  power,  (r) 

The  above  restrictions,  it  would  seem,  must  be 
taken  to  apply  in  their  full  strictness  only  to  the 
substituted  line  itself,  the  company  for  the  construc- 
tion of  their  new  line  having  all  the  accompaniments 
of  the  old,  just  as  much  as  if  the  former  had  been 
the  line  originally  inserted  in  the  parliamentary  plan, 
such  as  the  power  of  making  cuttings,  embank- 
ments and  the  like  ;  such  cuttings  and  embankments 
accordingly  may  not  only  extend  to  a  greater  dis- 
tance off  the  original  line  than  that  prescribed  by 
the  act  for  the  deviated  line  itself,  but  may,  it  seems, 
with  the  consent  of  the  owners,  be  even  carried  into 
lands  not  mentioned  in  the  parliamentary  plan,  (r) 

85.  Sometimes  a  further  power  is  given  by  the 
legislature  to  the  owners  of  particular  descriptions 
of  property  within  a  given  distance  of  the  rail- 
way, (5)  viz.  of  makinor  branch  railways  to  communi- 
cate with  the  principal.  In  investigating  the  effect 
of  such  a  power,  several  points  present  themselves 
for  consideration,  1st,  what  persons  are  within  the 
benefit  of  the  provision ;  2nd,  what  species  of  rail- 

()•)  Dne  d.  Payne  v.  The  Bristol  and  Exeter  Railwai/  Com- 
pany, 2  R.  Cas.  97  ;  S.  C.  6  M.  &  W.  320. 

(s)  As  to  the  question  from  what  terminus  the  distance  is  to 
be  measured,  see  Sirhowy  Tramroad  Company  v.  Jones,  3  A.iSc  E. 
640,  n.(a). 


Powers  of  a  Railway  Company.  79 

way  it  authorizes.  1st,  The  persons  of  wliom  the 
act  in  general  speaks,  are  the  proprietors  and  occu- 
piers of  certain  particular  descriptions  of  property 
in  the  neighbourhood  of  the  main  railway.  As  the 
provision  is  obviously  intended  for  the  benefit  and 
convenience  of  those  who  may  be  proprietors,  and 
from  time  to  time  proprietors  of  such  property,  it 
cannot,  it  seems,  be  confined  simply  to  such  persons 
as  fill  that  character  at  the  time  of  the  passing  of 
the  act,  or  the  making  of  the  main  railway,  but  em- 
braces all  who  subsequently  succeed  in  their  (i) 
place.  2nd,  As  to  the  species  of  railways  the  above 
power  authorizes.  Where  the  act  speaks  in  general 
terms  of  any  railways  or  roads,  those  terms  cannot 
be  qualified  or  cut  down  by  showing  that  only  a 
particular  description  of  railway  was  in  use  at  the 
passing  of  the  act,  so  as  to  confine  parties  to  that 
description  exclusively  of  all  others,  {u) 

86.  Where  the  power  is  given  in  the  first  instance 
to  the  company,  and  in  their  default  to  adjoining 
owners,  occupiers,  &c.,  but  the  amount  of  tolls  is 
limited  in  either  case  to  a  certain  rate,  unless  where 
persons,  in  order  to  induce  the  company  to  under- 
take the  work,  choose  to  agree  with  them  for  a 
higher  rate,  which  they  are  permitted  within  certain 
limits  to  do,  it  is  a  fraud  at  once  upon  the  company 
and  the  legislature  for  neighbouring  owners  of  pro- 
perty to  agree  together  to  construct  a  railway  under 
the  statutory  power  thus  given,  and  when  made,  to 
use  it  for  certain  specific  purposes  connected  with 

it)  Bishop  V.  North,  21  Law  Journ.  Exch.  362  ;  5.  C.  11  M. 
&  W.  418.  See  also  Monkland  and  Kirkintilloch  Hallway  Com' 
pany  v.  Dixon,  3  R.  Cas.  292. 

(m)  Bishop  V.  North,  ubi  supra. 


so         Company  as  constituted  under  the  Act. 

their  property,  paying  a  higher  rate  of  toll  than  that 
prescribed  by  the  act."  (a)  The  covenant  accord- 
ingly securing  the  higher  rate  of  toll  ought  not  to 
be  specifically  enforced  by  injunction ;  {x)  and  even 
independently  of  any  question  of  fraud,  such  a  co- 
venant is  not,  it  seems,  binding  on  the  assigns  of 
any  original  covenantor,  as  it  is  not  a  covenant  that 
runs  with  the  land  :  and  this  even  though  the  cove- 
nant makes  express  mention  of  "  assigns."  (x) 

87.  Where  the  above  power  extends  generally  to 
the  carrying  branch  railways  across  or  along  any  road 
within  the  given  limits,  semble  this  must  be  under- 
stood, not  as  conferring  on  the  grantee  an  absolute 
authority  to  deal  with  such  roads  as  he  may  please, 
or  as  may  best  suit  his  own  convenience,  but  as 
subject  to  the  limitation,  that  where  a  branch  rail- 
way is  laid  down  upon  another  road,  sufficient  space 
shall  be  left  independently  of  it  for  the  public  to 
pass,  {y) 

Or  if  the  power  given  to  the  company  to  make 
the  principal  line  be  subject  to  certain  restrictions 
in  the  case  of  roads,  the  power  in  question  may  be 
considered  with  reference  to  those  restrictions,  and 
as  qualified  by  them,  so  as  to  make  it  incumbent  on 
a  party  wishing  to  take  any  part  of  a  public  road 
for  the  use  of  his  branch  railway  to  comply  with 
such  restrictions,  (z) 

88.  Accordingly,  where  in  pursuance  of  the  sup- 
posed power,  a  party  lays  down  a  branch  railway 
upon  a  public  road  in  such  a  manner  as  to  obstruct^ 
hinder  and  inconvenience  the  public,  and  this  with- 
out complying  with  the  restrictions  imposed  on  the 

(i)  Keppell  V.  Bailey,  2  My.  &  K.  517. 

(y)  Judgment  of  Parke,  J.  in  Rex  v.  Morris,  1  B.  &  Ad.  441. 

(s)  Rex  V.  Morris,  ubi  supra. 


Powers  of  a  Railway  Company.  81 

company,  supposing  any  such  to  exist,  such  branch 
railway  is  a  public  nuisance,  and  indictable  as  such. 
And  the  party  cannot  justify  the  obstruction  in  such 
a  case  on  the  ground  of  the  facility  given  by  the 
railway  to  the  traffic  of  the  neighbourhood,  the  use 
of  it  being  permitted  to  the  public  on  paying  a  toll; 
because  no  man  has  a  right  to  tell  the  public  that 
they  shall  discontinue  the  use  of  such  carriages  as 
they  have  been  accustomed  to  employ,  and  adopt 
another  kind,  in  order  to  pass  along  a  new  descrip- 
tion of  road,  paying  him  for  so  doing,  (a) 

But  if  the  party  can  show  a  compliance  on  his 
part  with  the  conditions  imposed  by  the  act  on  the 
powers  of  the  company,  semble  that  may  operate  as 
a  justification  of  the  supposed  nuisance;  as,  for 
instance  (where  what  is  required  of  the  company 
before  interfering  with  any  existing  road  is  to  make 
a  new  one  in  lieu  of  the  old),  that  he  did,  before 
doing  any  thing  to  the  obstruction  of  the  old  road, 
give  to  the  public  a  new  one  as  convenient  as  the 
old.  (6) 

89.  Supposing  the  original  formation  of  any  such 
branch  line  of  railway  to  be  authorized  by  an  act,  it 
would  seem  highly  questionable,  whether,  after  the 
determination  of  the  powers  under  which  such  railway 
is  constructed,  either  it  may  be  by  the  repeal  of  the 
act,  or  by  its  expiration  it  being  originally  only 
temporary,  the  right  of  keeping  up  such  railway 
continues  any  longer,  (c) 

90.  2dly,  Of  SUBSIDIARY  or  incidental  Powers, 
and  herein,  1st,  of  the  general  powers  of  contracting, 
incidental  to  a   railway  company.      These  powers 

(a)  Rex  V.  Morris,  1  B.  &  Ad.  441. 

(b)  Ibid.  (e)  Ibid. 

£  5 


82         Company  as  constituted  under  the  Act. 

then  cannot,  it  is  conceived,  be  taken  to  be  absolute 
and  unlimited,  like  those  of  a  private  individual,  but 
must  be  restricted  to  the  objects  of  the  company's 
incorporation.  A  railway  company,  therefore  (in 
the  absence  of  any  express  provision  of  their  act  of 
incorporation),  cannot  in  general  make  bills  and 
notes,  {d)  or  grant  annuities,  or  raise  money  by  way 
of  loan,  &c.,  the  nature  of  the  objects  for  which 
they  are  incorporated  not  requiring  that  they  should 
possess  this  power,  (e) 

91.  2dly,  Of  the  powers  of  purchasing  and  taking 
land,  and  erecting  works,  ^c.  Powers  of  this  class 
are  divisible  into  two  heads,  according  as  they  are 
exercisable  or  not  against  the  consent  of  the  parties 
whose  interests  they  are  calculated  to  affect. 

92.  1st,  then,  of  the  latter  class,  or  of  what  may 
perhaps  be  termed  the  enabling  powers,  (/)  inasmuch 

(d)  The  issuing  of  loan  notes,  &c.  by  railway  companies  is 
now  prohibited  under  a  penalty,  by  the  7  &;  8  Vict.  c.  85,  s.  19, 
though  those  issued  before  the  passing  of  that  act  may  be  re- 
newed for  any  period  or  periods  not  exceeding  five  years  from 
the  passing  of  the  act.  Loan  notes,  &c.  issued  or  contracted  to 
be  issued  before  July  the  12th,  1844,  are  to  be  paid  when  due, 
subject  as  before  provided  in  the  act  (see  same  act,  s.  20^,  and 
are  to  be  registered.     lb.  s.  21.     See  act  given  in  the  Appendix. 

(e)  Broughlon  v.  The  Majichester  Water  Works  Company,  3 
B.  &  Aid.  1  ;  judgment  of  Denman,  C.  J.  in  Clarke  v.  The  Im- 
perial Gas  Light  and  Coke  Company,  4B.  &  Ad.  315.  See  case 
considered,  post.  Chap,  VI.  where  railway  company  were  in  the 
habit  of  forwarding  passengers  by  the  railway  to  places  beyond 
their  terminus  by  steam  boat. 

(/)  As  to  provisions  of  Lands  Clauses  Consolidation  Act, 
relative  to  purchase  of  lands  by  agreement  generally,  see  act, 
s.  6 — 11,  post,  App. ;  and  as  to  power  to  purchase  lands  for 
additional  accommodation,  see  same  act,  s.  12 — 14;  also  as  to 
power  to  purchase  lands  for  additional  stations,  &c.,  see  Railway 


Powers  of  a  Railway  Company.  83 

as  they  are  confined  to  the  enabling  the  company  to 
bargain  for  the  necessary  lands,  way  leaves,  &c.  and 
to  the  enlarging  the  powers  of  those  who  may  be 
willing  to  deal  with  them ;  as,  for  instance,  by  au- 
thorizing tenants  for  life  only  to  convey  the  fee 
simple,  and  the  like.  In  the  character  of  this  class 
of  powers,  there  is  but  little  matter  for  investigation ; 
as  in  general  they  go  no  further  than  to  enable  the 
company  to  purchase  land  for  the  benefit  of  the  un- 
dertaking generally,  or  for  additional  stations,  &c. 
in  particular ;  they  cannot,  of  course,  be  taken  to 
authorize  a  bargain  for  land,  which  is  not  wanted 
for  the  purpose  of  the  railway,  but  there  must  be  an 
express  authority  given  by  parliament  for  the  pur- 
pose. ((/) 

93.  Next,  of  the  former  class  of  powers,  or  of 
what  may  be  termed  compulsory  powers.  Before 
however  adverting  to  this  immediate  head  of  in- 
quiry, there  is  a  preliminary  question  that  obviously 
requires  to  be  considered,  viz.  whether  a  railway 
company  in  any  given  case  possesses  compulsory 
powers  of  taking  land,  &c.,  or  not ;  for,  although  in 
general,  powers  of  purchasing  land,  &c.  are  made 
exercisable  without,  or  even  against,  the  will  of  the 
parties  interested,  still  they  are  not  invariably  so ; 
as  the  projectors  may  think  that  they  shall  be  able 
to  obtain,  by  way  of  treaty,  all  that  they  require  for 
the  purposes  of  their  railway,  and  so  may  be  content 

Clauses  Consolidation  Act,  s.  45,  post,  App.  In  cases  of  parties 
under  disability,  &c.  the  Lands  Clauses  Consolidation  Act,  s.  9, 
requires  that  the  amount  of  compensation  be  ascertained  by  va- 
luation, and  paid  into  the  bank. 

(rf)  See  judgment  of  Lord  Abinger,  C.  B.,  in  Penvey  v. 
Great  Western  Boilirav  Comrmnv,  1  H.  Sc  Hurl.  •217. 


84         Company  as  constituted  under  the  Act. 

to  confine  their  request  to  the  legislature  simply  to 
the  granting  them  powers  of  purchasing  land,  &c., 
and  at  the  same  time  enlarging  the  powers  of  those 
who  may  be  willing  to  deal  with  them.  This  ques- 
tion must  of  course  depend  on  the  particular  pro- 
visions of  the  company's  act  of  incorporation,  (e) 
In  looking  at  an  act,  with  a  view  to  ascertain  this 
point,  it  must,  it  may  be  remarked,  be  borne  in  mind 
that,  as  compulsory  powers  of  taking  land,  &c.,  are 
calculated  to  operate  in  a  manner  highly  derogatory 
to  private  property,  they  must  receive  a  strict  con- 
struction, and  cannot  consequently  be  claimed  by  the 
company,  where  it  is  not  the  clear  intention  of  the 
legislature  to  confer  them. 

94.  A  railway  act  empowered  the  company  to 
make,  &c.,  a  railway  over  certain  lands  to  a  given 
terminus  ;  but  nothing  contained  in  the  statute  was 
to  authorize  the  company's  entering  upon,  taking, 
or  damaging  any  lands  without  the  consent  of  the 
owner,  &c.  In  case  of  the  company's  railway  cross- 
ing any  other  railway,  the  communication  between 
them,  if  the  company  and  the  owners  of  the  latter 
railway  did  not  agree  about  the  same,  was  to  be 
made  in  such  manner  as  should  be  directed  by  two 
engineers,  &c.,  the  company  to  compensate  the 
owners  of  the  other  railway,  &c.,  and  to  have  the 
liberty  of  crossing  such  railway  by  means  of  such 

(e)  As  to  when  one  railway  company  entitled  to  make  a 
bridge  across  the  line  of  another  company  without  the  consent 
of  the  proprietors  of  the  latter,  but  not  to  take  the  land  of  the 
latter  for  the  purpose  of  such  bridge,  without  their  consent,  see 
Clarence  Railway  Company  v.  Great  North  of  England,  Clarence 
and  Hartlepool  Junction  Railway  Company,  23  Law  Journ. 
Exch.  137  ;  5.  C.  13  M.  &  W.  706. 


Powers  of  a  Railway  Company.  85 

communication  at  all  times  without  payment  of  toll. 
It  was  held  that  the  latter  provision  did  not  clearly 
give  a  compulsory  power  in  the  case  where  a  rail- 
way was  to.be  crossed,  and  consequently  that  the 
former,  requiring  the  consent  of  the  owners  before 
entering  upon,  &c.  any  lands,  must  be  taken  to 
govern  the  latter,  and  made  the  consent  of  the 
owners  necessary,  in  order  to  the  company's  crossing 
a  railway,  {f) 

95.  To  return  to  the  question  before  proposed  for 
consideration,  viz.  the  nature  and  extent  of  the  com- 
pulsory powers  of  a  company,  (g)  A  railway  act 
usually  empowers  the  company,  not  only  to  enter 
upon  and  appropriate,  &c.,  the  lands  which  they  are 
authorized  to  use,  &c.  but  also  to  take  a  temporary 
possession  (h)  of  adjoining  lands,  (i)  and  dig  therein 
for  materials,  so  far  as  may  be  proper  or  necessary 
for  the  making,  &c.  of  the  railway  and  other  works 
authorized  by  the  act,  and  also  to  construct,  &c. 
across,  under,  or  over  roads,  railroads,  tramroads, 
rivers,  streams,  canals,  brooks,  &c.,  all  such  tunnels, 

(/')  Clarence  Railway  Company  v.  Great  North  of  England, 
Clarence  arid  Hartlepool  Junction  Railway  Company,  4  A.  &  E. 
N.  S.  46 ;  S.  C.  21  Law  Journ,  Q.  B.  146. 

(g)  As  to  analogous  provisions  of  Railway  Clause?  Consoli- 
dation Act,  see  act,  s.  16. 

(/i)  As  to  what  not  a  temporary  taking  possession  of  adjoining 
land'^,  see  Innocent  v.  North  Midland  Railway  Company,  1 
Railway  Cas.  242. 

(i)  As  to  provisions  of  Railway  Clauses  Consolidation  Act, 
on  the  subject  of  the  temporary  use  of  lands,  see  act,  ss.  30 
— 44.  Also  as  to  power  of  entry  upon  lands  for  purpose  of  sur- 
veying, &c.,  giving  not  less  than  three  nor  more  than  fourteen 
days'  notice,  see  Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18, 
s.  84,  post,  App. 


86  Company  as  constituted  under  the  Act. 

embankments,  aqueducts,  bridges,  &c.,  as  tbey  may 
think  proper  ;  and  to  alter  the  course  of  any  brooks, 
rivers,  canals,  &-c.,  as  may  be  necessary  for  con- 
structing such  tunnels,  bridges,  &c.,  over  or  under 
the  same,  and  also  to  alter  the  course  of,  or  divert, 
or  raise,  or  sink,  any  rivers,  streams  of  water,  roads, 
or  ways,  in  order  the  more  conveniently  to  carry  the 
same  over,  under,  or  by  the  side  of  the  intended  line 
of  railway  ;  and  also  upon  the  railway,  &c.  to  erect 
and  construct  all  such  houses,  wharfs,  warehouses, 
&c.,  as  they  may  think  proper ;  and  also  from  time 
to  time  to  alter,  &c.  the  before-mentioned  works, 
and  to  substitute  others  in  their  stead,  and  to  do 
and  execute  all  other  matters  and  things  necessary 
or  convenient  for  making,  maintaining,  &;c.  the  rail- 
way and  other  works  authorized  by  the  act. 

96.  The  above  powers,  so  far  as  they  regard  the 
dealing  with  lands,  (k)  embrace  two  classes  of  lands, 
1st,  those  that  the  company  are  empowered  to  take 
for  the  purposes  of  their  act ;  and  2nd,  adjoining 
lands,  which  the  company  are  enabled  temporarily 
to  occupy,  or  to  dig  therein  for  the  necessary  mate- 
rials. The  company  cannot,  it  should  seem,  by  vir- 
tue of  the  above  powers,  take  land  for  the  purpose 
of  employing  the  soil  in  forming  an  embankment  on 
a  different  part  of  the  line.  (/)  Notwithstanding, 
however,  that  the  company  attempt  to  gain  posses- 
sion of  land,  in  the  first  instance,  for  a  purpose  such 

(k)  With  resf)ect  to  powers  of  entry  upon  adjoining  lands,  to 
repair  accidents,  iic,  and  the  revival  of  the  company's  powers  of 
taking  land,  in  order  to  make  slopes,  inc.,  see  post,  cap.  6,  and 

5  &  6  Vict.  c.  55,  sects.  14  and  15,  Appendix. 

(l)  Webb  V.  Manchester  and  Leeds  Railway  Company,  4  M. 

6  Cr.  116 ;  5.  C.  1  Railway  Cas.  600. 


Powers  of  a  Railway  Company.  87 

as  that  just  suggested,  which  is  not  sanctioned  by 
their  act,  yet  if  the  land,  by  reason  of  subsequent 
events,  become  really  necessary  or  desirable  for  any 
bonS.  fide  purpose  of  the  act,  such,  for  instance,  as 
the  increasing  the  slope  in  a  part  of  the  line  where 
there  has  been  a  slip,  a  court  of  equity  will  not  in- 
terfere to  prevent  its  being  taken.  {I) 

97.  The  power  of  dealing  with  roads,  8fc.  (m)  is, 
as  we  have  seen,  not  an  absolute  uncontrolled  power, 
but  only  given,  as  a  railway  act  usually  expresses 
it,  in  order  to  enable  the  company  more  conveni- 
ently to  carry  the  same  over,  under,  or  by  the  side 
of  the  railway.  The  word  "  conveniently  "  here  must 
it  seems  be  taken  to  mean  "  more  conveniently  upon 
the  whole  for  carrying  into  effect  the  purposes  of 
the  act."  The  company  accordingly  are  hereby  in- 
vested with  a  discretionary  power  of  altering,  divert- 
ing, &c.  roads  in  such  a  manner  as  an  experienced 
and  skilful  engineer  would  judge  expedient,  having 
regard  to  the  interests  both  of  the  company  and  the 
public ;  for  the  work  must  be  done,  if  possible, 
without  any  inconvenience  to  the  public  ;  or,  if  this 
cannot  be,  then  with  the  least  possible.  A  railway 
company,  in  carrying  a  road  under  the  railway,  built 
a  skew  bridge,  and  diverted  the  road  to  an  angle  of 
45  deg.  instead  of  34  deg.,  which  was  the  angle  made 
at  that  particular  point  by  the  old  road.  The  bridge 
might  have  been  made  at  an  angle  of  34  deg.,  and 
the  public  gained  no  additional  convenience  by  its 

(/)  Webb  V.  Manchester  and  Leeds  Railway  Company,  4  M. 
&  Cr.  116  ;  5.  C.  1  Railway  Cas.  600. 

(m)  As  to  what  extent  of  interference  with  roads,  authorized 
by  power  of  making  branch  railways,  see  ante,  pp.  80,  81,  and 
Rex  V.  Morris,  ]  B.  &  Ad.  441. 


88  Company  as  constituted  under  the  Act. 

being  made  otherwise  ;  but  it  appeared  that  no  real 
inconvenience  was  sustained  by  passengers  in  con- 
sequence of  the  diversion,  and  that  the  bridge  was 
properly  constructed  with  regard  to  the  interests  of 
the  company  and  the  public.  It  was  held  that, 
under  the  circumstances,  the  bridge  must  be  deemed 
to  be  built  in  conformity  with  the  intention  of  the 
act,  and  was  not  indictable  as  a  nuisance,  {n) 

98.  So  likewise,  the  effect  of  the  usual  powers 
given  by  a  railway  act  for  the  construction  of  the 
necessary  rvorks,  ^-c,  is  to  invest  tiie  company  with 
a  discretion  (not  arbitrary,  but  to  be  exercised  rea- 
sonably and  bond  fide),  of  doing  such  works,  and  in 
such  a  manner  as  a  reasonable,  careful  and  skilful 
man  would  judge  expedient  and  fit ;  they  may 
therefore  temporarily  bridge  over  a  stream  or  canal, 
where  it  can  be  shown  to  be  a  reasonably  convenient 
measure  for  the  due  execution  of  the  works  con- 
templated by  the  act,  and  provided  that  in  so  doing 
they  do  not  offend  against  any  of  the  restrictions  of 
the  act.  (o) 

So  likewise  a  company  may  arch  over  a  public 
street  or  highway,  for  the  purpose  of  erecting  on 
the  top  certain  buildings  contemplated  by  their  act, 
where  this  is  a  reasonably  convenient  course  for  the 

(n)  Reg,  V.  Sharpe,  3  Railway  Cas.  33,  n.  (a). 

(o)  Priestly  v.  The  Manchester  and  Leeds  Railway  Company, 
2  Railway  Cas.  134 ;  S,  C.  4  Y.  &  Coll.  63  ;  The  London  and 
Birm.  Railway  Company  v.  The  Grand  Junction  Canal  Company, 
1  Railway  Cas.  238.  But  a  company  are  not  justified,  even  for 
a  temporary  purpose  connected  with  their  works,  in  making  a 
bridge  over  a  road  not  in  compliance  with  the  restrictions  of  their 
act;  Att.  Gen.  v.  Eastern  Counties  Railway  Company,  3  Rail- 
way Cas.  337 ;  S.  C.  7  Jur.  806. 


Powers  .of  a  Railway  Company.  89 

purpose  in  question,  (p)  And  where  a  company  are 
empowered  to  throw  a  bridge  over  another  railway, 
they  may,  if  it  is  reasonably  necessary  for  the  con- 
struction of  the  bridge,  place  their  temporary  scaf- 
folding, &c.  on  the  land  of  the  proprietors  of  the 
latter  line,  {q) 

99.  In  according  to  a  railway  company  the  com- 
pulsory powers  above  considered,  the  legislature  is 
careful  to  accompany  them  with  certain  provisions  in 
favour  of  the  parties  whose  interests  the  exercise  of  such 
powers  is  calculated  to  affect.  Of  these  provisions 
some  are  of  general  application  to  every  description 
of  those  interests.  Such  are  the  provisions  that  the 
company,  their  workmen,  &c.,  in  the  execution  of 
the  above  powers,  shall  do  as  little  damage  as  may 
be  ;  and  again,  that  the  company  shall  make  full 
satisfaction  to  the  interested  parties  for  all  damages 
sustained  in  the  execution  of  such  powers.  Other 
provisions  are  of  a  more  limited  kind,  and  intended 
to  protect  particular  descriptions  of  interests,  or  to 
guard  against  peculiar  mischiefs,  likely  to  result  from 
the  execution  of  a  great  public  work,  such  as  a  long 
and  extended  line  of  railway,  and  for  which  a  mere 
pecuniary  compensation  is  inadequate  fully  to  pro- 
vide. In  treating  accordingly  of  the  above  provi- 
sions, it  is  proposed  to  consider  them  under  two 
heads  :  1st,  the  general;  2nd,  the  specific. 

(p)  Att.  Gen.  v.  Eastern  Counties  and  North  Eastern  Couiities 
Railway  Companies,  2  Railway  Cas.  823  ;  S.  C.  10  M.  &  W. 
263. 

(9)  Clarence  Railway  Company  v.  Great  North  of  England, 
S^c.  Railway  Company,  23  L.  J.  Exch.  137  ;  S.C.  13  M.  &  W. 
706 ;  Great  North  of  England,  &c.  Railivuy  Company  v.  Clarence 
Railway  Company,  1  Coll.  507. 


90         Company  as  constituted  under  the  Act. 

100.  1  St,  then,  of  the  general  provisions^  and  herein, 
1st,  of  the  former  of  the  two  general  provisions, 
which  prescribes  that  the  company,  in  the  execution 
of  their  powers,  are  to  do  as  little  damage  as  may  be. 
The  object  of  this  provision  is  not  to  tie  up  the  com- 
pany from  doing  what  is  necessary  to  the  carrying  out 
of  their  works  according  to  the  parliamentary  plan, 
but  to  render  it  obligatory  on  them  in  so  doing  to 
do  as  little  damage  as  is  consistent  therewith.  Ac- 
cordingly, if  they  attempt  to  carry  on  their  works  in 
such  a  way  as  to  cause  more  damage  than  the  neces- 
sity of  the  case  requires,  a  court  of  equity  will  in- 
terfere to  restrain  them,  (r)  Where  therefore  a  line 
is  carrying  on  on  a  given  level,  it  is  not  allowable  for 
the  company  suddenly  to  part  with  such  level,  and 
come  down  on  to  a  stream  of  water,  and  to  destroy 
the  interest  therein,  without  some  cogent  reasons  for 
so  doing,  (r) 

So  likewise,  where  a  railway  company  were  pro- 
ceeding to  erect  an  arch  over  a  mill  race,  for  the 
purpose  of  sustaining  an  embankment,  on  which  the 
railway  was  to  be  constructed,  and  it  appeared  that 
if  the  arch  were  of  the  dimensions  proposed  by  the 
railway  company,  injury  would  be  done  to  the  mill, 
but  that  such  injury  would  be  avoided,  if  the  arch 
were  of  larger  dimensions,  an  injunction  was  granted 
to  restrain  the  company  from  making  over  the  mill 
race  an  arch  of  less  than  certain  dimensions.  (*)  So 
likewise,  in  dealing  with  any  road  that  lies  in  the 
way  of  their  railway,   the  company  are   bound  to 

(r)  Judgment  of  Lord  Chancellor  in  Manser  v.  The  Korlh 
Eastern  Counties  Railway  Company,  2  Railway  Cas.  391. 

(s)  Coats  V,  Clarence  Railway  Company,  1  Russ.  &  My. 
181. 


Powers  of  a  Railway  Company.  91 

consult  as  far  as  possible  both  public  and  private 
convenience,  (f) 

101.  The  second  general  restriction  ordinarily  im- 
posed on  a  railway  company,  is  that  of  making 
compensation  to  the  interested  parties  for  all  land, 
&c.  taken,  and  damages,  &c.  caused  in  the  execu- 
tion of  the  powers  of  the  act.  The  inquiry  into  the 
nature  and  effect  of  such  restriction  involves  such 
a  variety  of  points,  as  to  require  to  be  made  the 
subject  of  a  separate  section. 

102.  Having  noticed  the  general  restrictions  usu- 
ally imposed  on  the  powers  of  a  railway  company, 
it  remains  for  us  in  the  next  place  to  consider  some 
of  a  more  specijie  character,  which  are  intended  to 
protect  particular  descriptions  of  interests,  or  to  guard 
against  particular  mischiefs,  incident  to  an  under- 
taking of  so  peculiar  a  character  as  a  railway.  The 
more  immediate  objects  contemplated  by  this  latter 
class  of  provisions,  are  either  to  regulate  the  degree 
and  nature  of  the  interference  which  is  to  be  per- 
mitted to  the  company  with  the  protected  interests, 
or  else  to  afford  some  more  specific  remedy  against 
the  evils  of  the  company's  interference  than  a  mere 
money  compensation.  As  the  nature  and  effect  of 
any  restriction  of  the  above  kind  necessarily  varies 
with  the  quality  of  the  interest  it  is  designed  to  pro- 
tect, it  may  be  proper,  in  treating  of  such  restrictions, 
to  adopt  this  quality  as  the  principle  of  classification, 
and  accordingly  to  consider  the  restrictions  in  ques- 
tion as  they  are  intended  to  operate  for  the  protec- 
tion,   1st,  of  aquatic  rights,   and  generally  of  the 

({)  Reg.  V,  Manchester  and  Leeds  Railway  Company,  3  A.  & 
E.  N.  S.  528,  judgment  of  Tindal,  C.  J. 


92         Company  as  constituted  under  the  Act. 

public  avenues  of  water  communication ;  2dly,  of 
roads,  highways,  and  generally  of  thoroughfares  by 
land;  3dly,  of  dwelling  houses,  gardens,  &c. ;  4thly, 
of  mines  and  minerals ;  and  lastly,  as  they  are  meant 
to  provide  for  the  accommodation  of  adjoining  lands, 
and  in  particular  to  secure  the  due  means  of  com- 
munication across  the  railway, 

103.  1st  then,  of  the  restrictions  imposed  on  the 
powers  of  the  company  for  the  protection  of  aquatic 
rights.  Where  a  railway  is  intended  to  cross  a 
navigable  river,  canal,  or  other  like  thoroughfare 
of  public  importance,  the  act  usually  determines 
the  nature  and  extent  of  the  interference  which  it 
proposes  to  allow,  on  the  part  of  the  company,  with 
the  rights  of  the  parties  interested  in  the  water. 
Accordingly,  it  not  only  specifies  and  ascertains  the 
exact  method  in  which  the  crossing  is  to  be  effected, 
viz.  by  a  bridge  of  given  character  and  dimensions, 
but  likewise,  to  render  the  protection  still  more 
complete,  prohibits  either  absolutely,  or  except  to  a 
certain  extent  and  within  certain  limits,  any  diver- 
sion of  the  water,  or  damaging  or  obstruction  of  the 
navigation. 

104.  Next,  as  to  the  effect  of  the  above  restrictions. 
If  the  company  venture  to  interfere  with  any  such 
river,  canal,  &c.  in  a  manner  that  militates  against 
the  above  restrictions,  they  are  liable  to  be  re- 
strained by  a  Court  of  Equity;  but  subject  to  that, 
and  so  far  as  there  are  no  restrictions,  the  powers 
given  to  the  compony  by  their  act  are  to  be  reason- 
ably and  liberally  carried  into  effect.  A  company 
were  empowered  by  act  of  parliament  to  cross  canals, 
make  embankments,  &c.,  and  generally  to  do  all 
works  necessary  or  convenient  for  the  construction 


Powers  of  a  Railway  Company.  93 

of  their  line  of  railway  ;  subsequent  clauses  of  the 
act,  however,  restricted  them  from  doing  any  thing 
which  should  obstruct  the  navigation  of  a  particular 
canal,  and  prescribed  the  manner  in  which  the  rail- 
way was  to  cross  the  canal,  viz.  by  a  bridge  of  given 
height  and  dimensions.  It  was  held  that  the  rail- 
way company  had  a  right  to  make  a  temporary 
bridge  over  the  canal  for  the  purpose  of  transport- 
ing earth  across  from  the  higher  land  on  one  side  of 
the  canal  to  the  lower  on  the  other,  to  form  an  em- 
bankment in  the  line,  provided  that  in  so  doing  they 
did  not  obstruct  the  navigation,  (m) 

105.  Where  the  act,  instead  of  prohibiting  all  ob- 
struction, limits  it  to  such  as  is  of  a  certain  extent 
and  character,  the  company  impliedly  have  the  right 
of  obstructing  the  navigation,  provided  they  comply 
with  those  requisites.  Where  therefore  a  railway 
act  conferred  on  a  company  all  the  usual  powers  of 
doing  works,  crossing  streams,  &c.,  but  required 
them  in  crossing  a  particular  navigation  to  make 
bridges  of  given  dimensions,  and  also,  during  the 
progress  of  constructing  those  bridges,  to  leave  a 
certain  extent  of  water-way,  and  further  prohibited 
the  making  any  other  bridges,  or  doing  any  thing  to 
the  damage  or  obstruction  of  the  navigation  except 
as  before  provided  :  it  was  held  that  the  company 
might  erect  a  temporary  bridge  across  the  naviga- 
tion for  the  purposes  of  a  permanent  bridge  which 
they  were  authorized  to  make,  provided  the  tem- 
porary bridge  were  so  constructed,  as  to  leave  an 
uninterrupted  water-way  of  the   required   extent ; 

(tt)  London  and   Birmingham    Railway   Company   v.  Grand 
Junction  Canal  Company,  1  R,  Cas.  224. 


94         Company  as  constituted  under  the  Act. 

and  that  being  bond  fide  erected  for  the  purpose  in 
question,  and  in  compliance  with  the  prescribed 
requisites,  the  company  might  use  it  for  a  further 
purpose,  viz.  the  transporting  materials  from  the 
company's  works  on  one  side  of  the  navigation  to 
construct  an  embankment  on  the  other,  if  such  fur- 
ther use  of  the  bridge  in  question  did  not  render 
it  more  inconvenient  to  the  canal  company  than  if 
used  for  the  one  legitimate  purpose  only.  If  the 
bridge  in  question  were  not  bona  fide  erected  for 
both  purposes,  but  ostensibly  only  for  the  legitimate 
purpose  and  substantially  and  really  for  the  pro- 
hibited, that  of  course  would  make  a  difference;  but 
such  an  intention  in  the  company  could  not,  it  was 
held,  be  inferred  from  the  company  having  attempted 
to  introduce  into  an  agreement  between  themselves 
and  the  undertakers  of  the  navigation,  touching  a 
variation  in  the  line  of  railway,  a  clause  enabling 
them  (the  railway  company)  to  erect  temporary 
bridges  across  the  navigation,  which  clause  was  sub- 
sequently struck  out  by  the  undertakers,  (x) 

106.  Provisions  of  such  a  nature  can,  it  seems, 
only  be  insisted  on  by  the  parties  whose  interests  they 
are  intended  directly  to  j)rotect;  and,  therefore,  as  re- 
gards other  than  the  protected  interests,  if  any  such 
there  chance  to  be,  the  general  powers  of  the  act 
still  remain  applicable.  Where,  therefore,  parties 
were  owners  of  a  fulling  mill  on  the  banks  of  the 
Calder,  which  was  supplied  with  water  from  that 
river,  and  were  also  interested  in  the  preserving 
open  the  navigation   of  the   river  for  the   general 

(x)  Priestly  v.  Manchester  and  Leeds  Railway  Company,  2  R. 
Cas.  134 ;  S.  C.  4  You.  6c  C.  63. 


Powers  of  a  Railway  Company.  95 

purposes  of  their  business,  but  not  otherwise;  the 
Court  of  Chancery  would  seem  to  have  inclined  to 
the  opinion  that  they  could  not  sustain  a  suit  to 
enforce  the  provisions  of  a  railway  act  protecting 
the  Calder  navigation  from  injury  by  the  railway 
works,  but  that  the  railway  company  were  entitled 
to  deal  with  the  parties'  interest  in  the  waters  un- 
der the  general  powers  of  their  acts,  those  powers 
being  very  extensive,  and  clearly  embracing  the  case 
in  question,  and  the  qualification  as  to  the  Calder 
navigation  relating  simply  to  the  navigation,  and  not 
to  the  interests  which  the  plaintiffs  or  others  might 
have  in  the  waters  for  other  purposes,  and  there 
being  no  proof  of  any  intention  on  the  part  of  the 
railway  company  to  evade  the  provisions  in  favour 
of  the  proprietors  of  the  navigation,  {y) 

107.  It  is  proposed,  in  the  next  place,  to  speak  of 
the  restrictions  ordinarily  imposed  by  railway  acts 
on  the  general  powers  of  the  company  for  the 
protection  of  roads,  highways,  and  other  avenues 
of  communication  by  land,  (z)  These  are  of  various 
kinds,  so  as  to  meet  all  possible  degrees  of  inter- 
ference or  of  interruption  threatened  by  the  rail- 
way. Some,  accordingly,  are  more  general,  and 
embrace  any  kind  of  interference  with  a  road,  high- 
way, &c. ;  others  are  more  specific,  and  intended  to 
provide  for  the  particular  case  of  the  railway  and 
a   road   crossing   each   other,   or  the    like ;    others 

(?/)  lUingwm-th  v.  The  Manchester  and  Leeds  Railway  Com- 
pany, 2  R.  Cas.  209. 

(z)  Asto  provisions  of  Railways  Clauses  Consolidation  Act  on 
subject  of  roads,  see  act  8  Vict.  c.  20,  s.  46 — 62  ;  as  to  restric- 
tions, &c,,  which  must  be  imported  into  general  power  of  making 
branch  railways,  see  ante,  pp.  80,  81. 


96         Company  as  constituted  under  the  Act, 

again,  in  lieu  of  any  definite  restriction  on  the  com- 
pany, give  the  parties  interested  in  the  existing  road 
a  jurisdiction  to  determine  in  what  manner  altered 
or  diverted  roads  are  to  be  made,  and  require  that 
all  shall  be  done  to  their  satisfaction. 

108.  Before,  however,  adverting  more  particularly 
to  the  operation  of  these  different  kinds  of  restric- 
tions, taken  separately,  it  may  be  proper  in  the  first 
place  to  notice  certain  general  rules  of  construction 
applicable  to  the  entire  class,  and  which  conse- 
quently must  be  borne  in  mind,  in  any  attempt  to 
explain  the  effect  of  the  above  restrictions,  in  qua- 
lifying the  general  powers  of  the  company. 

109.  In  construing  the  power  and  the  restriction  toge- 
ther, the  one  is  not  to  be  advanced  at  the  expense  of  the 
other.  The  power,  therefore,  is  not  to  be  curtailed 
or  cut  dovvn  by  straining  the  language  of  the  re- 
striction beyond  its  fair  and  natural  import,  or  by 
implying  a  condition  not  expressly  imposed  by  the 
terms  of  the  act. 

A  railway  act  authorized  the  company  to  lower 
a  road,  in  order  to  throw  a  bridge  across  it,  and  pre- 
scribed the  conditions  upon  which  they  were  per- 
mitted to  do  so,  viz.  that  the  bed  of  the  road  should 
be  lowered  on  both  sides  of  the  bridge  by  which 
the  railroad  was  to  cross  the  turnpike  road,  with  a 
certain  ascent  each  way,  and  that  the  company 
should  make  new  drains,  &c.  and  relay  and  reform 
the  road,  &c.  The  declared  object  of  this  was  to 
enable  carriages  to  pass  with  safety,  by  giving 
them  a  clear  uninterrupted  headway  of  certain  di- 
mensions under  the  bridge.  It  was  held  that,  under 
this  provision,  the  company  were  not  bound  to  ex- 
cavate both  the  carriage  way  and  footpath,  which 


Powers  of  a  Railway  Company.  97 

constituted  the  old  road,  but  the  former  only, 
the  purpose  for  which  the  road  was  directed  to  be 
lowered  being  attainable  without  any  alteration  of 
the  level  of  the  footpath,  and  that  even  the  carriage 
road  need  not  be  lowered  to  the  full  width  of  the 
former  carriage  road,  there  being  no  express  enact- 
ment to  that  effect,  which  there  was  respecting  its 
level,  (a)  So,  where  a  railway  act  declared  that 
nothing  in  that  act  was  to  derogate  from  the  rights 
or  privileges  of  any  parish,  over  which  the  railway 
should  pass,  acting  under  any  local  act,  it  having 
been  previously  enacted  by  a  prior  local  act  for  the 
paving,  &c.  of  a  certain  parish,  that  no  person 
should  alter  the  form  of  any  pavements  which 
should  be  made  under  that  act,  without  the  consent 
of  the  commissioners,  or  in  anywise  encroach  there- 
on, or  put  up  any  posts,  boards,  &c.,  it  was  held 
that  the  company  were  nevertheless  entitled,  in 
carrying  the  railway  by  a  bridge  over  a  street  un- 
der the  controul  of  the  commissioners,  to  lower  the 
street,  so  as  to  give  to  the  arch  of  such  bridge  the 
height  required  by  their  act,  the  provisions  of  the 
local  act  being  clearly  intended  to  operate  as  a  mere 
police  regulation  for  the  preventing  what  are  com- 
monly called  street  nuisances  and  encroachments  and 
the  like,  and  therefore  not  applying  to  the  case  of  a 
simple  lowering  of  the  street  and  relaying  the  pave- 
ment in  the  same  form  and  of  the  same  dimensions, 
(which  was  all  that  the  company  sought  to  do).  (6) 

(a)  Reg.  V.  Manchester  and  Leeds  Raiticay  Company,  3  A.  & 
E.  N.  S.  528. 

(fo)  Reg,  V.  Eastern  Counties  Railway  Company,  3  R.  Cas.  22 ; 
S.  C.  2  A.  &  E.  N.  S.  569. 


98         Company  as  constituted  under  the  Act. 

110.  Secondly,  although  in  the  exercise  of  their 
powers  the  company  cannot  be  permitted  to  militate 
against  the  restrictions  imposed  on  them  by  their 
act,  still  within  the  limits  of  such  restrictions,  or  as 
far  as  none  such  exist,  the  powers  given  to  the  com- 
pany by  their  act  are  to  he  reasonably  aad  liberally 
carried  into  effect,  and  the  company  consequently 
must  so  far  be  considered  to  enjoy  a  discretion  (not 
however  to  be  capriciously  or  arbitrarily  exercised) 
as  to  the  best  method  of  employing  those  powers. 
Thus,  where  a  company  had  a  general  power  of 
dealing  with  all  roads,  &c.,  subject  only  to  certain 
restrictions  as  to  the  height  of  the  arch  of  any 
bridge  for  carrying  the  railway  over  or  across  any 
turnpike  road,  and  the  descent  under  such  bridge, 
it  was  held  that  a  railway  company  were  authorized 
to  sink  the  original  surface  of  a  turnpike  road  (the 
descent  thereby  occasioned  not  being  greater  than 
that  prescribed  by  the  act)  in  order  to  give  the  spe- 
cified elevation  to  the  arch  of  a  bridge  erected  for 
carrying  the  railway  over  such  road,  notwithstand- 
ing the  effect  from  the  peculiar  situation  of  the  road 
would  be  to  render  it  liable  to  be  occasionally  (c) 
flooded.  So,  where  a  railway  company  were  em- 
powered to  make  bridges  over  roads,  &c.,  subject 
to  a  restriction  as  to  the  width  of  the  span  of  the 
arch,  the  Vice-Chancellor  was  of  opinion  that  the 
company,  in  carrying  a  bridge  over  a  turnpike  road, 
might,  provided  they  left  the  requisite  open  space 
under  the  arch,  erect  the  piers  upon  the  road,  not- 
withstanding the  original  width  of  the  road  would 
be  considerably  lessened  thereby,  {d) 

(c)  Aldred  and  others  v.  The  North  Midland  Railway  Com- 
pany, 1  Railway  Cas.  404. 

((i)  Her   Maj.  Att.  Gen,  v.   The   London   and  Soutliampton 


Powers  of  a  Railway  Company.  99 

111.  It  is  proposed  in  the  next  place  to  consider 
the  above  restrictions  taken  separately,  in  order  more 
fully  to  ascertain  their  effect  in  qualifying  the  general 
powers  of  the  company.  To  commence  with  the 
more  general:  (e)  this  usually  enacts,  that  in  all 
cases  in  which  any  avenue  of  communication,  such 
as  a  road,  wharf,  quay,  &c.,  shall  be  required  to  be 
cut  through,  taken,  or  injured,  so  as  to  be  rendered 
impassable  or  inconvenient  for  the  purposes  of  traf- 
fic, the  company  shall  first  of  all  make  another  good 
and  sufficient  communication  as  convenient  as  the 
old,  or  as  near  thereto  as  may  be ;  and  where  the 
road  cut  through,  injured,  &c.,  is  a  turnpike  road, 
that  the  substituted  road,  if  temporary,  shall  be 
made  and  the  principal  road  restored  within  a  fixed 
period. 

112.  Sometimes  the  act  imposes  a  penalty  {f)  on 
the  company  for  a  breach  of  the  above  provision. 
Where  in  the  case  of  a  private  road  this  penalty  is 
made  payable  to  the  owner  thereof,  the  tenant  of  the 
land  over  which  the  railway  passes,  and  not  the 
reversioner,  is,  it  seems,  the  proper  party  to  sue  for 
the  penalty.  (§■)     Although  a  power  is  given  by  the 

Railway  Company,  9  Sim.  78  ;  S.  C.  1  Railway  Cas.  314.  The 
company's  act  likewise  contained  a  general  clause  providing  for 
injury  to  roads,  but  the  Vice-Chancellor  held  that  it  did  not 
affect  the  case  ;  but  see  n.  (i),  p.  100. 

(e)  As  to  analogous  provisions  of  Railways  Clauses  Consoli- 
dation Act  (8  Vict.  C.20),  see  act,  ss.  53  and  56,  post,  Ap- 
pendix. 

(/)  See  for  analogous  provision  of  Railways  Clauses  Con- 
solidation Act  (8  Vict.  c.  20),  ss.  54  and  57,  post,  Appendix. 

(g)  So  held,  on  motion  for  new  trial,  by  three  barons  against 
one,  in  CoUinson  v.  Newcastle  and  Darlington  Railway  Company, 
F  2 


1 00        Company  as  constituted  under  the  Act, 

act  to  recover  such  penalty  before  two  justices,  it 
may  yet  be  sued  for  in' one  of  tiie  superior  courts  at? 
Westminster,  {h) 

113.  In  construing  the  above  restriction,  there  are 
two  points  that  it  is  proposed  to  consider  ;  1st,  its 
scope  and  extent;  and  2nd,  the  degree  in  which  it 
must  he  taken  to  qualify  the  general  powers  of  the 
company. 

1st.  Looking  at  the  general  tenor  and  purport  of 
the  provision  in  question,  it  must,  it  is  conceived, 
be  taken  to  apply  in  every  case  of  a  company  so 
dealing  with  a  road,  highway,  &'C.,  as  to  destroy  its 
character  and  utility  as  an  avenue  of  communi- 
cation. As  for  instance,  where  a  bridge  and  ap- 
proaches are  constructed  on  part  of  a  line  of  turn- 
pike road,  in  order  to  carry  the  same  over  the  rail- 
way, (a  proceeding  which  it  is  obvious  must  render 
some  substitution  necessary  in  the  part  of  the  line 
intended  to  be  occupied  by  the  bridge) ;  this  is 
clearly  a  taking  within  the  meaning  of  the  above 
provision,  (i) 

114.  The  term  "injured"  here  accordingly  must 
not  be  understood  as  applying  simply  to  bodily  in- 
juries done  directly  to  a  road,  wharf,  &c.,  but  eni- 

not  yet  reported.  At  the  trial  it  had  been  ruled  that  the  tenant 
was  not  the  proper  party  to  sue.  See  same  case  1  C.  &  Kir. 
546. 

(h)  Same  case  1  C.  &  Kir.  546.  See  also  Mayor,  <5)C.  of 
Lichfield  V.  Simpson,  9  Jur.  989. 

(i)  Reg.  V.  Birmingham  and  Gloucester  Railway  Company,  2 
A.  &  E.  N.  S.  61 ;  S.C.2  Railway  Cas.  694.  The  Vice-Chaa- 
cellor  in  the  case  of  the  Att.  Gen.  v.  Londim  and  Southampton 
Railway  Company,  9  Sim.  78  ;  S.  C,  1  Railway  Cas.  314,  seems 
to  have  inclined  to  put  a  narrower  construction  on  a  similar 
clause,  but  see  this  case  commented  on  in  that  just  cited. 


Powers  of  a  Railway  Company.  101 

braces  all  cases  where  there  is  a  destruction  of  the 
usefulness  of  anything  of  the  class  in  question  as  an 
avenue  of  communication  ;  as  for  instance,  where  a 
company  carried  their  works  in  front  of  a  wharf, 
between  it  and  the  low  water  mark,  so  as  to  sepa- 
rate the  frontage  from  the  water,  thereby  causing 
great  risk  and  inconvenience  in  the  loading  and  un- 
loading vessels,  it  was  held  that  the  owner  had  a 
right  to  have  a  new  wharf  erected  for  him  by  the 
company.  (Jc) 

115.  So,  likewise,  the  provision  in  question  applies 
to  a  permanent  as  well  as  to  a  temporary  diversion 
of  a  road.  (/)  And  if  a  company  set  out  a  new  road, 
and  then  proceed  to  injure,  cut  through,  &c.  that, 
they  are  compellable  to  set  out  another,  {m) 

116.  2dly.  Of  the  extent  to  which  the  above  clause 
must  he  taken  to  qualify  the  powers  of  the  company, 
or,  in  other  words,  what  it  requires  them  to  do,  in 
order  to  satisfy  the  act.  The  clause  in  question 
then,  we  have  seen,  contemplates  two  cases,  viz.  that 
of  a  permanent  diversion  of  a  road,  highway,  &c., 
and  that  of  a  mere  temporary  diversion. 

117.  First,  then,  let  us  take  the  former  case,  viz. 
that  where  a  permanent  diversion  is  intended  by  the 
company.  Looking  at  the  requisites  of  the  clause 
in  question,  the  substantial  question  here  is,  whether 
the  new  road,  wharf,  quay,  &c.,   is  a  good  substi- 

(A:)  Bell  V.  Hull  and  Selby  Railway  Company,  2  Railway 
Cas.  279 ;  S.  C.  6  M.  &  W.  699. 

(/)  Per  Patteson,  J.,  i?«^.  v.  Birmingham  and  Gloucester 
Hallway  Company,  2  Railway  Cas.  704. 

(m)  See  judgment  of  Vice-Chancellor  in  Attorney-General  v. 
Eastern  Counties  Railway  Company,  7  Jurist,  806  ;  S.  C.  3  Rail- 
way Cas.  337. 


102        Company  as  constituted  under  the  Act. 

tution  within  the  meaning  of  the  act ;  or,  in  other 
words,  is  either  absolutely  as  convenient  as  the  old 
road,  &c.,  or  as  nearly  so  as  circumstances  per- 
mit. The  criterion  on  which  the  determination  of 
this  question  must  rest  is  sufficiently  obvious,  viz. 
on  a  comparative  estimate  of  the  several  requisites 
of  the  new  and  old  road,  &c.  respectively,  for  the 
purposes  of  traffic,  such  as  their  length,  breadth, 
direction,  level,  and  the  like.  If,  upon  such  a  ba- 
lancing of  their  respective  advantages  and  disadvan- 
tages, the  new  road  is  found  to  be  in  some  respects 
better  than  the  old,  but  in  others  less  convenient,  it 
then  becomes  a  question  whether  what  is  gained  in 
the  one  respect  can  be  considered  a  fair  equivalent 
for  what  is  lost  in  the  other. 

118.  A  railway  company  were  proposing  to  di- 
vert a  road  leading  to  the  plaintiff's  mill ;  the  ori- 
ginal road,  it  appeared,  was  broader,  and  more 
direct  than  the  one  to  be  substituted  by  the  com- 
pany, but  these  advantages  were  in  a  great  degree 
neutralized  by  the  danger  and  narrowness  of  its 
outlet  communications,  whereas  the  new  line  of 
road,  though  narrower  and  more  circuitous,  pro- 
mised to  be  safer  of  ingress  and  egress.  The  Lord 
Chancellor  seems  to  have  inclined  to  the  opinion, 
that  the  new  road  (taking  into  account  all  the  cir- 
cumstances of  the  case)  was  a  good  substitute  for 
the  old.  (w) 

119.  If  the  new  road  is  decidedly  more  inconve- 
nient in  some  important  particular,  and  there  is  no 
increase  of  convenience  gained  thereby  in  any  other 

(n)  lllingwoith  v.  The  Manchester  and  Leeds  Railway  Com- 
pany, 2  Railway  Cas.  209,  210. 


Powers  of  a  Railway  Company.  103 

respect  to  counterbalance  it,  then,  it  seems,  the  new 
road  cannot  be  considered  to  satisfy  the  provision 
in  question.  Where,  therefore,  a  company  made  a 
substituted  road  twenty-seven  feet  broad,  instead 
of  forty,  which  was  the  width  of  the  original  road, 
and  the  new  road  was  less  convenient  as  a  drift 
way,  it  was  held  clearly  not  to  be  authorized  by  the 
act.  (o) 

120.  Generally  speaking,  the  above  question 
would  seem  to  be  more  properly  a  question  for  a 
jury.  Thus  where  a  railway  company,  under  the 
powers  of  their  act,  were  intending  to  take  part  of 
an  occupation  road  that  ran  through  a  farm,  and 
had  been  immemorially  used  by  the  tenants  of  such 
farm,  as  a  means  of  communication  for  agricultural 
purposes,  and  in  lieu  thereof,  to  set  out  a  road 
making  a  circuit  of  six  hundred  yards,  a  proceeding 
which  was  calculated  to  interfere  with  a  purpose  to 
which  the  owner  of  the  farm  contemplated  applying 
a  certain  portion  of  his  land,  the  Lord  Chancellor 
granted  an  injunction  against  any  interference  with 
the  road  in  question,  until  it  should  be  decided  by  a 
jury  whether  the  road  proposed  to  be  substituted 
by  the  company  were  within  the  meaning  of  the  act, 
a  proper  substitution  for  the  road  proposed  to  be 
taken,  (p) 

121.  Although,  upon  a  comparison  of  their  abso- 
lute merits,  the  new  is  found  to  fall  short  of  the  old 
line  of  road,  still,  if  such  new  line  is  as  convenient  as 
circumstances  admit  of  its   being   made,   it  may  be 

(o)  Reg.  V.  London  and  Birmingham  Railuay  Company,  1 
Railway  Cas.  317. 

(p)  Kemp  V.  The  London  and  Bright07i  Railway  Company,  1 
Railway  Cas.  508. 


104        Company  as  constituted  under  the  Act. 

enough  to  satisfy  the  act. .  In  estimating  those  cir- 
cumstances, regard  can  be  had  in  general  to  physical 
causes  and  possibilities  only,  and  the  pecuniary 
interests  or  the  convenience  of  the  company  cannot 
be  taken  into  account.  Still  the  rule  is  not  to  be 
stretched  so  far  as  to  require  the  company  to  lay 
out  enormous  sums  of  money,  to  procure  a  slight 
accommodation  to  some  persons  ;  and  therefore 
where  a  road  cannot  be  made  as  convenient  as  be- 
fore, without  a  disproportionate  and  unwarrantable 
expenditure,  it  may  be  enough  to  make  it  (g)  as 
nearly  so  as  they  can,  without  entailing  on  them- 
selves such  a  sacrifice. 

122.  It  follows,  from  what  has  been  here  said, 
that  where  a  company  stand  convicted  of  a  breach 
of  the  above  provision,  they  cannot  excuse  them- 
selves on  the  score  of  their  inability,  &c.  to  comply 
with  its  requisites.  Thus  where  a  railway  company 
were  empowered  to  make  a  tunnel  through  a  public 
street,  first  setting  out  a  temporary  substituted  road, 
and  by  reason  of  the  company  .being  precluded  by 
their  act  from  taking  land  in  a  particular  line,  there 
could  be  no  other  substitution  for  the  street  in  its 
original  state,  except  by  making  a  temporary  bridge 
over  the  line  of  the  tunnel  in  that  direction,  this  was 
held  not  to  excuse  them  from  complying  with  the 
provisions  of  their  act,  but  that  it  was  incumbent  on 
the  company,  if  they  made  the  tunnel  through  the 
street  in  question,  to  make  in  the  first  instance  a 
temporary  bridge  in  the  line  of  the  street,  (r) 

(9)  Reg.  V.  Scott,  3  A.  &  E.  N.  S.  543  ;  S.  C.  3  Railw.  Cas. 
187. 

(r)  Spencer  v.  The  London  and  Birmingham  Railway  Com- 
pany,  1  Railway  Cas.  169  j    see  also  Kemp   v.   The  London 


Powers  of  a  Railway  Company.  105 

123.  So  likewise  it  would  be  no  excuse  for  the 
company  to  allege  the  steepness  of  the  land,  and  the 
state  of  the  earth,  as  rendering  it  impossible  to  do 
what  their  act  required  ;  (s)  or  that,  by  reason  of  the 
expiration  of  their  powers,  they  were  unable  to  take 
the  necessaay  land ;  {t)  or  that  their  statute  did  not 
authorize  their  injuring  a  particular  description  of 
property,  and  that  they  could  not  act  up  to  the  pro- 
visions of  their  statute,  without  injuring  that  very 
description  of  property,  (t) 

124.  2nd.  Where  the  diversion  is  intended  to  be 
only  temporary,  in  addition  to  the  requisite  just  con- 
sidered, the  act  (where  it  is  a  turnpike  road  that  is 
taken,  &c.)  imposes  the  still  further  obligation  of 
setting  out  the  substituted  road,  and  restoring  the 
old  road  within  a  given  period.  (?*)  Where  a  com- 
pany are  thus  required  to  restore  a  road,  this,  it 
seems,  must  be  understood  of  a  restoration  of  such 
road  to  its  original  width,  (.x)  A  company,  there- 
fore, whose  powers  are  subjected  to  the  above  re- 
strictions, are  bound,  in  carrying  a  road  over  the 
railway,  to  make  the  road  of  the  same  width  as  it 
was  before,  up  to  the  very  point  where  the  bridge 
commences. 

and  Brighton  Railway  Company,  1  Railway  Cas.  500  ;  Manser 
V.  The  Northern  and  Eastern  Counties  Hailvmy  Company,  2 
Railway  Cas.  380. 

(s)  Reg.  V.  Scott,  3  Railw.  Cas.  187  ;  5.  C.  3  A.  &  E.  N.  S_ 
543. 

(f)   Reg.  V.  The  Birmingham,  and  Gloucester  Railway  Com- 
pany, 2  Railway  Cas.  694  ;  S.  C.  2  A.  &  E.  N.  S.  61. 

(tt)  As  to  provision  of  Railways  Clauses  Consolidation  Act 
about  restoring  roads,  see  act,  s.  56,  post.  Appendix. 

(i)  Reg.  V.  The  Birmingham  and  Gloucester  Railway  Com- 
pany, 2  Railway  Cas.  694  ;  S.  C.  2  A.  &  E.  N.  S.  61. 
F  5 


106         Company  as  constituted  under  the  Act. 

125.  2nd,  Of  the  more  specific  provisions  touching 
the  crossing  of  roads,  and  the  character  and  construc- 
tion of  bridges,  ^'C,  where  these  are  the  means  of 
crossing  prescribed  by  the  act.  {y) 

126.  1st,  then,  as  to  the  mode  of  crossing  ;  this  is 
generally,  in  the  case  of  a  turnpike  road,  by  a  bridge, 
tunnel  or  viaduct,  of  a  given  height,  character,  and 
dimensions.  In  such  a  case  a  railway  company 
cannot  interfere  with  a  road  in  any  other  manner 
than  that  specified  in  the  act.  Where,  therefore,  a 
company,  endowed  with  the  usual  powers  of  cross- 
ing roads,  &c,,  purchased  a  private  wharf,  separated 
from  one  of  their  terminus  stations  by  a  turnpike 
road,  and  proceeded  to  lay  down  on  the  road  stone 
blocks,  so  as  to  form  two  runs  or  stone  ways,  level 
with  the  road,  for  the  purpose  of  facilitating  the 
passage  of  goods  from  the  wharf  across  the  road  to 
the  station,  it  was  held  that  they  were  not  autho- 
rized to  do  so ;  and  an  injunction,  which  had  been 
granted  to  restrain  the  trustees  of  the  road  from 
removing  the  stone  blocks,  was  dissolved,  although, 
in  the  opinion  of  the  court,  no  damage  could  result 
from  the  stone  blocks  either  to  the  road,  or  the  pas- 
sengers upon  it.  {z) 

127.  2nd,  Of  the  character  and  construction  of 
bridges,  ^-c.  A  railway  act  in  general  not  merely 
requires  the  crossing  to  be  by  a  bridge ;  but  like- 
wise contains  certain  regulations,  touching  the  cha- 

(i/)  As  to  crossing  of  roads  and  construction  of  bridges  under 
Railways  Clauses  Consolidation  Act,  see  act,  s.  46 — 52,  post. 
Appendix. 

(2)  London  and  Brighton  Railway  Company  v.  Cooper,  2 
Railway  Cas.  312  ;  see  also  the  Company  of  Proprietors  of 
Northam  Bridge  and  Roads  v.  The  London  and  Southampton 
Railway  Company,  1  Railway  Cas.  682. 


Powers  of  a  Railway  Comjmny.  107 

racter  and  construction  of  the  bridge,  as  for  instance, 
touching  the  height  and  dimensions  of  the  arch  ge- 
nerally, the  inclinations  of  all  ascents  and  descents 
to  and  from  such  bridge,  and  the  like.  To  consider 
then  the  effect  of  such  regulations,  suppose  a  railway 
company,  in  crossing  a  public  street,  are  required  to 
make  a  viaduct  or  bridge,  extending  over  the  whole 
width  of  the  street,  and  with  a  certain  given  height 
under  it,  above  the  level  of  the  street,  &c.,  a  viaduct 
composed  of  arches,  supported  upon  piers  or  but- 
tresses, erected  for  that  purpose  in  the  street,  can- 
not, as  it  should  seem,  be  taken  to  satisfy  the 
meaning  of  the  legislature,  but  there  must  be  a  bridge 
or  viaduct  so  constructed  as  that,  in  whatever  way 
it  is  made,  the  entire  width  of  the  street  is  left  clear 
and  unobstructed,  (a)  Even  though  the  bridge  be 
a  temporary  one,  as  for  instance,  where  it  is  erected 
for  the  purpose  of  conveying  spoil  earth  from  one 
part  on  the  line  of  railway  to  another,  it  still  must 
comply  with  the  regulations  of  the  act.  (6) 

128.  Where  a  railway  act  speaks  of  a  bridge  oi' 
given  dimensions  as  the  means  of  crossing  a  railway, 
this  must  not  be  understood  to  include  the  ap- 
proaches to  such  bridge  on  either  side.  The  power 
therefore  of  crossing  a  road  by  a  bridge  of  a  given 
breadth,  gives  no  right  to  narrow  the  road  beyond 
the  span  of  the  bridge,  by  extending  the  parapet 
walls,  but  the  company  are  bound  to  make  the  road 


(ffl)  Att.  Gen.  V.  Manchester  and  Leeds  Railway  Company,  1 
Railway  Cas.  447. 

(6)  Att.  Gen,  v.  Eastern  Counties  Railway  Company,  3  Rail- 
way Cas.  337. 


108         Company  us  constituted  under  the  Act. 

of  the  original  width  up  to  the  very  point  where  the 
bridge  commences,  (c) 

129.  Of  the  inclination  of  the  ascents  and  descents 
to  and  from  bridges,  (d)  A  railway  act  usually  pro- 
vides what  is  to  be  the  maximum  rate  of  this  incli- 
nation, or  at  any  rate  that  it  is  not  to  exceed  the 
steepness  of  the  old  road.  In  applying  the  latter 
branch  of  the  above  provision  to  the  case  of  a  di- 
verted road,  the  relative  steepness  of  the  new  and 
old  road  is  to  be  determined,  not  by  their  compara- 
tive acclivity,  measuring  the  whole  length  of  each 
from  the  commencement  to  the  end  of  the  deviation, 
but  by  a  comparison  of  the  rate  of  ascent  on  the 
new  road,  from  the  place  of  diversion  below  the 
bridge,  to  the  crown  of  the  arch  of  such  bridge,  with 
the  rate  of  ascent  on  the  old  road  from  the  same 
place  to  the  corresponding  point  on  that  road. 
Although  an  act  speak  of  the  present  inclination  of 
the  road  which  is  to  cross  the  railway,  and  in  the 
line  of  which  the  bridge  is  to  be  built,  as  the  limit  of 
steepness,  this  applies  as  well  to  a  bridge  built  on  a 
diverted  road,  as  to  one  built  on  the  site  of  a  pre- 
viously existing  road.  By  the  term  "  present  incli- 
nation" in  such  case  is  to  be  understood  the  inclina- 
tion of  the  old  road  as  it  may  exist  at  the  time  of  its 
being  taken  by  the  company,  (e) 

(c)  Reg,  V.  The  London  and  Birmingham  Railway  Company, 
1  Railway  Cas.  325  ;  see  also  Reg,  v.  The  Birmingham  and 
Gloucester  Railway  Company,  2  Railway  Cas.  695;  S.  C.  2  A. 
&  E.  N,  S.  51,  n.  (a). 

(d)  As  to  the  provisions  of  Railways  Clauses  Consolidation 
Act  (8  Vict.  c.  20),  on  this  head,  see  act,  ss.  49,  50,  52,  post, 
Appendix. 

(e)  An.  Gen.  v.  The  London  and  Southampton  Railway  Com- 
pany, 1  Railway  Cas.  284. 


Powers  of  a  Railway  Company.  109 

130.  In  providing  for  the  mode  of  dealing  with 
roads,  the  legislature  vve  have  seen  usually  makes  a 
distinction  between  turnpike  and  other  roads.  By 
a  turnpike  road  in  such  a  case,  is,  it  seems,  to  be 
understood,  a  road  where  there  is  a  right  to  set  up 
gates  and  take  tolls.  (/) 

131.  We  are  led  in  the  next  place  to  the  consi- 
deration of  another  kind  of  restriction,  viz.  that 
which  gives  to  the  parties  interested  in  any  pre-exist- 
ing avenue  of  communication  a  jurisdiction  to  deter- 
mine how  a  road,  highway,  <^c.,  which  it  is  proposed 
to  alter  or  divert,  is  to  be  made,  and  requires  that  all 
shall  be  done  to  those  parties'  satisfaction.  There 
are  two  things  to  be  here  considered ;  1st,  the  scope 
and  extent  of  such  an  enactment ;  2nd,  its  operation 
in  qualfying  the  powers  of  the  company. 

132.  1st.  The  ex^en^  of  such  a  restriction,  and  the 
cases  in  which  it  applies,  must  of  course  depend  on 
the  terms  of  the  particular  act  of  parliament  by 
which  it  is  imposed.  Where  an  act  directed  that  all 
alterations  of  certain  roads  within  a  parish  were  to 
be  made  under  the  directions  of  the  surveyors  of  the 
parish,  the  Vice-Chancellor  seems  to  have  thought 
it  fairly  questionable,  whether  any  authority  was 
given  to  the  surveyors  in  the  case  of  a  diversion  of 
one  of  the  roads  in  question,  the  legislature  in  other 
parts  of  the  act  plainly  distinguishing  between  an 
alteration  and  a  diversion.  (^) 

133.  2nd.   Under  a  restriction  of  the  above  kind^ 

(f)  The  Company  of  Proprietors  of  Northam  Bridge  and 
Roads  V.  The  London  and  Southampton  Railway  Company,  1 
Railway  Cas.  672  ;  S.  C.  6  M,  &  W.  428. 

(g)  London  and  Brighton  Railway  Company  v.  Blake,  2  Rail- 
way Cas.  322. 


110         Company  as  constituted  under  the  Act. 

the  parties,  in  whose  favour  it  is  introduced,  clearly 
have  an  authority  (of  course  not  to  be  capriciously 
exercised)  to  determine  what  is  a  proper  road  to  be 
made  by  the  company.  As  incidental  thereto,  they 
necessarily  enjoy  a  right  to  apply  to  the  proper  court 
to  have  a  road  made  in  a  proper  manner  directly ; 
as  for  instance,  if  they  apply  by  mandamus  ;  or  they 
may  apply  to  a  court  of  equity,  and  so  restrain  the 
company  from  making  the  road  in  question  other- 
wise than  as  it  ought  reasonably  to  be  to  their 
satisfaction.  But,  although  the  parties  in  question 
are  thus  privileged  to  regulate  in  some  degree  what 
is  to  be  done  by  the  company  touching  the  forma- 
tion of  roads,  this  does  not  entitle  them,  in  case  they 
are  not  pleased  with  something  done  by  the  com- 
pany, to  take  the  law  into  their  own  hands,  and  stop 
the  proceedings  of  the  company.  Where  therefore 
the  surveyors  of  the  roads  of  a  parish,  who  under  a 
railway  act  claimed  a  jurisdiction  to  decide  about 
the  formation  of  all  roads  in  the  parish,  threatened 
to  put  up  fences  on  the  sides  of  a  temporary  di- 
verted road  at  the  point  where  it  was  crossed  by 
the  railway,  in  order  to  stop  the  company  from 
crossing  such  temporary  road  with  engines,  &c. 
in  a  manner  dangerous  to  the  public,  it  was  held 
that  they  had  no  right  under  the  act  to  interfere 
with  the  railway  in  the  manner  proposed,  but  that 
they  ought  to  have  applied  for  an  injunction  or 
a  mandamus  against  the  company,  (h) 

Where  the  county  surveyor  was  made  under  a 
railway  act  the  ultimate  referee  of  the  manner  in 
which  a  bridge  was  to  be  built  by  one  railway  com- 

(h)  The  London  and  Brighton  Eaitway  Company  v.  Blake, 
2  Railway  Cas.  322. 


Powers  of  a  Railway  Company.  Ill 

pany  across  the  line  of  another,  it  was  held  that  he 
had  not  exhausted  his  authority  by  a  decision  not  in 
conformity  with  the  act  of  parliament,  but  that  he 
might  make  a  second.  (?') 

134.  The  next  class  of  provisions  that  it  is  pro- 
posed to  consider,  are  those  ordinarily  introduced 
into  railway  acts  for  the  i^rotection  of  messuages, 
buildhigs,  and  other  jtroperty  of  a  like  description,  or 
appurtenant  to  or  connected  with  the  above.  These 
are  distinguishable  according  to  the  object  which 
they  contemplate,  viz.  according  as  they  prohibit  the 
company  from  taking  property  of  the  kind  in  ques- 
tion either  absolutely,  or  except  upon  certain  con- 
ditions ;  or  else  render  it  compulsory  upon  them  in 
certain  cases  to  take  it ;  or  prescribe  some  particular 
mode  of  proceeding  touching  the  property  in  ques- 
tion. 

135.  First,  then,  a  railway  act  usually  provides 
that  no  houses,  buildings,  <^c.  are  to  be  taken  for  the 
purposes  of  the  act,  other  than  those  specif  ed  in  the 
schedule,  without  the  consent  in  writing  of  the  pro- 
prietor. The  substantial  inquiry  in  construing  the 
above  provision,  is  as  to  the  quality  of  the  property 
intended  by  the  act  to  be  protected.  Now  such  a 
provision  evidently  has  reference  to  the  privilege 
universally  accorded  by  the  law  of  this  country  to 
buildings  inhabited  by  man.  These  consequently, 
it  is  natural  to  conceive,  constitute  the  principal 
things  contemplated  by  the  legislature  in  inserting 

(i)  Clarence  Railway  Company  v.  Great  North  of  England, 
Clarence  and  Hartlepool  Junction  Railway  Company,  23  Law 
Journ.  Exch.  137 ;  S.  C.  13  M.  &  W.  706  ;  Great  North  of 
England,  &;c.  Railway  Company  v.  Clarence  Railway  Company, 
1  Coll.  507. 


112        Company  an  constituted  under  the  Act. 

such  a  provision.  Hence,  even  though  other  de- 
scriptions of  property  are  mentioned  in  the  act,  they 
must  in  general  be  construed  of  something  bearing 
a  reference  to  the  principal  thing.  A  railway  act 
enacted  that  the  company  should  not  be  authorized 
to  take  any  house  or  other  building,  Sec,  or  any 
ground  set  apart  and  used  as  a  garden,  orchard, 
yard,  park,  paddock,  plantation,  planted  walk,  or 
avenue  to  a  house,  or  any  inclosed  ground,  planted 
as  an  ornament  or  shelter  to  a  house,  or  planted  or 
set  apart  as  a  nursery  for  trees,  other  than  such  as 
were  specified  in  the  schedule  to  the  act,  &c.  The 
Vice-Chancellor  considered  that,  in  the  above  sec- 
tion, the  term  yard  was  to  be  taken  with  reference 
to  a  building,  the  only  other  thing  spoken  of,  wholly 
disconnected  from  a  house,  being  a  nursery  for  trees, 
the  reason  for  the  exception  of  which  was  almost 
evident  on  the  face  of  it.  {k) 

13G.  Provisions  of  the  second  class  are  in  ge- 
neral framed  to  meet  two  cases  ;  1st,  where  part 
of  a  messuage,  building,  ^-c.  is  required  for  the  pur- 
poses of  the  railway,  in  which  case  the  act  gives  the 
owner  power  to  insist  that  the  company  shall  take 
the  whole  or  none ;  (/)  and  2nd,  where  the  property 
lies  within  such  a  distance  of  the  railway  as  to  be 
subject  to  deterioration  by  reason  of  its  construc- 
tion. The  substantial  question  that  arises  in  the 
former  of  the  two  cases  is  the  same  as  that  which 
has  been  just  considered,  and  must  therefore  be  de- 
termined upon  like  principles.     Consequently,  even 

(fe)  Stone  V.  The  Commercial  Bailway  Company,  9  Sim.  626  ; 
S.  C.  1  Railway  Cas.  395. 

(/)  As  to  analogous  provision  in  Lands  Clauses  Consolidation 
Act  (8  Vict,  c.  18),  see  act,  s.  92,  post,  App. 


Potvers  of  a  Railway  Company.  1 1 S 

though  an  act,  in  specifying  the  property  intended 
to  be  thus  privileged,  speak  expressly  of  other  de- 
scriptions of  property  than  houses  or  buildings,  yet 
the  terms  so  employed  must  be  construed  with  re- 
ference to  those  with  which  they  are  found  in  con- 
nexion, and  so  as  to  preserve  and  carry  out  the  pre- 
vailing unity  of  idea  that  pervades  the  clause.  A 
railway  act  enacted,  that  in  case  of  application  by 
the  company  for  any  part  of  any  house,  garden, 
yard,  warehouse,  building,  or  manufactory,  they 
should  not,  where  the  owner  wished  to  part  with 
the  whole,  and  gave  notice  of  the  same  to  the  com- 
pany, be  empowered  to  take  or  use  less  than  the 
whole  of  such  house,  garden,  yard,  &c.  The  com- 
pany wished  to  take,  for  the  purposes  of  their  act, 
part  of  a  bonded  timber  yard  of  three  acres  in  ex- 
tent, containing  certain  detached  sheds  for  stowing 
timber,  &c.  The  Vice-Chancellor  was  of  opinion, 
that  the  mere  collocation  of  the  words  implied  that 
the  terms  "  garden  and  yard"  were  to  be  taken  in 
connexion  with  a  house,  and  that  the  premises  in 
question  not  being  connected  with  a  messuage  or 
building,  (otherwise  than  as  a  deal  shed,  &c.  might 
be  called  a  building,  which  for  the  purpose  in  ques- 
tion it  could  not,)  were  not  privileged  property 
within  the  meaning  of  the  above  section,  (m) 

137.  Where  a  railway  act,  instead  of  specifying 
any  particular  quality  or  description  of  property, 
speaks  of  the  'property  of  this  or  that  jierson  as  the 
subject  of  protection,  using  the  term  apparently  in 
the  collective  sense,  that  it  seems  will  be  construed 

(m)  Stone  v.  Commercial  Railway  Company,  1  Railway  Cas. 
375;  S.  C.  9  Sim.  621. 


114       Company  as  constituted  under  the  Act. 

to   include  whatever  is  comprised  in  one  take  or 
lease,  (n) 

138.  In  the  second  case,  viz.  that  of  a  house,  S:c. 
lying  within  such  a  distance  of  the  railway  as  to  be 
subject  to  deterioration  by  reason  of  the  construc- 
tion, &c.  thereof,  a  like  remedy  is  provided  as  in  the 
former,  viz.  by  empowering  the  owner  to  insist  on 
the  purchase  of  the  thing  injured.  The  consider- 
ation of  the  effect  of  this  provision  obviously  in- 
volves two  points ;  one,  which  has  been  already 
considered  under  the  preceding  head,  touching  the 
quality  of  the  property  intended  to  be  protected, 
and  a  second,  touching  its  situation  within  the  given 
distance.  To  proceed  then  to  the  latter,  where  the 
entire  house,  &c.  is  within  the  requisite  distance,  no 
question  can  of  course  be  made  about  the  case  being 
within  the  provision.  But  suppose  that  part  of  the 
thing  deteriorated  is  within,  and  part  without  such 
distance,  the  question  then  would  seem  to  come  to 
this  :  is  it  a  case  where  the  premises  constitute  one 
indivisible  whole,  and  consequently  the  purchase  and 
severance  of  a  part  would  be  ruinous  to  the  whole, 
and  where  the  part  within  the  requisite  distance 
constitutes  a  very  large  proportion  of  the  property  ? 
If  so,  the  whole  it  seems  must  be  deemed  within  the 
distance,  (o) 

139,  A  public  house  was  forty-four  feet  in  depth  ; 
the  greater  part  was  within  fifty  feet  of  the  railway, 
(that  being  the  specified  distance  under   the  par- 

(n)  Reg.  V.  The  London  and  Greenwich  Railway  Company, 
3  Railway  Cas.  144,  judgment  of  Lord  Denman,  C.  J. ;  S.  C. 
3  A.  &  E.  N.  S.  166  ;  20  Law  Journ.  Q.  B.  187. 

(o)  Walker  v.  London  and  Blackmail  Railway  Company, 
3  A.  &  E.  N,  S.  744 ;  H.  C.  21  Law  Journ.  Q.  B.  88. 


Powers  of  a  Railway  Company.  115 

ticular  act),  but  a  portion,  comprising  the  bar,  and 
varying  in  depth  from  thirteen  to  sixteen  feet,  was 
more  than  fifty  feet  from  the  railway  ;  it  was  alleged 
that  the  premises  were  deteriorated  by  the  railway, 
and  that  if  the  former  portion  only  were  purchased, 
the  residue  would  be  useless  to  the  owner ;  it  was 
held  that  compensation  was  claimable  for  the  public 
house,  under  a  provision  of  the  kind  under  consi- 
deration, (o) 

140.  But  where,  instead  of  this  indissoluble  con- 
nexion between  the  different  parts  of  the  premises, 
there  is  a  mere  extraneous  one,  such  as  that  of  being 
held  under  one  take  or  lease,  and  nothing  to  show 
that  the  company  by  taking  the  one  part  will  inter- 
fere with  the  residue,  then  it  seems  they  will  not  be 
compelled  to  purchase  more  than  the  part  of  the 
premises  actually  within  the  requisite  distance,  (p) 
S.  and  Co.  were  lessees  of  a  piece  of  ground,  (p) 
on  which  stood  a  vinegar  manufactory,  warehouses, 
&c.  a  principal  dwelling  house  and  garden,  and  five 
smaller  dwelling  houses.  These  premises  were  so 
situated  that  a  straight  line  drawn  parallel  to  the 
railway  at  the  distance  of  fifty  feet  (being  that  spe- 
cified by  the  particular  act)  would  include  a  part  of 
the  principal  dwelling  house  and  the  garden,  but 
would  pass  between  the  rest  of  the  premises  and  the 
railway.  It  was  held  that  the  company  were  not 
bound,  under  a  provision  such  as  that  in  question, 
to  purchase  more  than  the  principal  dwelling  house 
and  garden,  (p) 

(o)  Walker  v.  London  and  Blackmail  Railway  Company, 
3  A.  &  E.  N.  S.  744  ;  S.  C.  21  Law  Journ.  Q.  B.  88. 

(p)  Beg,  V.  The  London  and  Greenwich  Railway  Campany, 
3  Railway  Cas.  138  ;  S.  C.  3  A.  &  £.  N.  S.  166. 


116        Company  as  constituted  under  the  Act. 

141.  Srdly.  As  to  the  assessment;  a  railway  act 
sometimes  requires  that,  where  damage  to  a  man- 
sion is  in  question,  the  inquisition  shall  be  taken  by 
a  special  jury.  The  trying  by  a  common  jury  in 
such  a  case  would  seem  to  amount  to  an  excess  of 
jurisdiction,  that  might  perhaps  be  taken  to  subject 
the  company  to  an  action  of  trespass,  or  (in  the  ab- 
sence of  any  provision  to  the  contrary)  be  a  ground 
for  setting  aside  the  proceedings,  {q) 

142.  Another  class  of  provisions,  bearing  a  close 
analogy  to  those  last  mentioned,  and  of  a  very  ob- 
vious tendency,  are  those  which  restrain  a  railway 
company  from  approaching  within  a  given  distance  of 
premises  with  their  line  of  rail,  works,  &c.  There 
are  two  things  to  which  such  a  prohibition  is  usually 
made  to  extend;  1st,  the  making  of  any  railroad, 
tram,  or  other  roads,  within  the  prescribed  limits  ; 
2nd,  the  making  or  establishing  any  station,  yard,  ^-c. 
within  the  same.  The  principal  thing  prohibited 
by  the  former  clause  being  a  railway  or  tramroad, 
the  other  words,  notwithstanding  their  generality, 
must  be  so  construed  as  to  preserve  the  unity  of  the 
idea ;  they  can  only  therefore  be  understood  to 
noean  something  ejusdem  generis  with  the  principal 
matter  prohibited,  viz.  some  new  channel  of  com- 
munication enabling  the  public  to  pass  to  the  rail- 
road. The  making  or  opening  a  mere  passage  or 
pathway,  communicating  at  the  one  end  with  a 
public  road,  and  at  the  other  with  the  railway,  and 
allowing  passengers  to  pass  along  it  to  the  railway 
for  the  purpose  of  being  taken  up  and  set  down  by 

(q)    Reg,  V.   The  Bristol  and   Exeter   Railway   Company,  2 
Railway  Cas.  102  ;  S.  C.  11  A.  &  E.  202,  n.  (a). 


Powers  of  a  Railway  Company.  117 

the  trains,  stopping  at  the  end  of  the  passage,  does 
not  therefore  fall  within  the  prohibition,  (r) 

143.  The  second  thing  forbidden  is  the  construct- 
ing any  station,  waiting  place,  S^c.  within  the  pre- 
scribed limits.  This  branch  of  the  prohibition  does 
not  preclude  the  company  from  stopping  and  taking 
up  or  setting  down  passengers  within  such  limits.  (5) 
Neither  can  a  mere  passage  way,  along  which  pas- 
sengers are  allowed  to  pass  at  particular  times  to 
the  railway,  but  not  to  wait  there,  nor  an  hired 
room  in  the  house  of  another  party,  though  em- 
ployed by  the  company  for  the  ordinary  purposes 
of  a  waiting  room,  &c.  be  construed  as  falling  within 
the  forbidden  description,  (r) 

144.  But  where  the  company  erected  a  platform 
and  made  steps  leading  down  to  it  from  the  top  of 
the  embankment  of  the  railway,  and  took  up  and 
set  down  passengers  there,  and  otherwise  used  the 
platform  as  a  station,  and  also  commenced  making  a 
carriage  road  from  a  certain  lane  to  the  top  of  the 
embankment,  it  was  held  that  the  road,  platform 
and  steps  collectively  constituted  a  station  (<).  It 
was  also  held,  that  the  steps  would  come  under  the 
head  of  "  machinery,"  or  "  machinery  or  other 
erection,"  spoken  of  in  the  prohibitory  clause,  and 
therefore  fell  within  the  same  ;  and  that  a  perma- 
nent ladder  would  be  an  erection  within  the  meanin<y 
of  the  same  clause.  (J) 

(r)  The  Provost  of  Eton  College  v.  The  Great  Western  Rail- 
way Company,  1  Railway  Cas.  200  ;    5.  C.  3  Jur.  163. 

(s)  lb. ;  Lord  Petre  v.  Eastern  Counties  Railway  Company, 
3  Railway  Cas.  367. 

(t)  Lord  Pelre  v.  Eastern  Counties  Railway  Company,  3  Rail- 
way Cas.  367. 


118        Company  as  constituted  under  the  Act. 

145.  Sometimes  the  prohibition  is  couched  in 
more  comprehensive  terms,  and  made  to  include  not 
simply  certain  specific  classes  of  things,  but  gene- 
rally all  buildings  or  conveniences  for  the  deposit, 
&c.  of  goods,  articles,  &c.  The  erection  of  an  en- 
gine-house, stable,  water-tank,  and  cottages  within 
the  forbidden  distance,  would  seem  to  be  a  clear 
infringement  of  a  prohibition  couched  in  the  terms 
last  supposed,  {u) 

146.  Even  though  the  prohibitory  clause,  in  enu- 
merating those  things  which  are  meant  to  be  for- 
bidden, be  found  to  annex  the  term  jmblic  by  way 
of  prefix  to  such  enumeration,  yet  this  would  not,  it 
seems,  materially  affect  its  operation.  In  the  first 
place,  the  term  in  question  can  hardly  be  construed 
to  govern  and  affect  all  the  words  of  enumeration 
used  in  the  clause  ;  and  even  assuming  it  to  do  so, 
still  it  cannot,  it  should  seem,  be  considered  as  ex- 
clusively applicable  to  things  of  public  resort,  or 
such  as  are  immediately  used  by  the  company  in 
the  discharge  of  what  may  be  termed  the  public 
duty  they  have  undertaken,  but  may  fairly  be  ex- 
tended to  all  things  tending  even  mediately  to  the 
same  purpose  ;  such,  for  instance,  as  buildings  and 
conveniences  for  keeping  and  repairing,  &c.  all  ma- 
chines, utensils,  &c.  which  are  requisite  to  keep  the 
line  of  railway,  or  the  machinery  on  the  line,  in 
order  for  the  use  of  the  public,  (u) 

147.  The  next  class  of  provisions  that  it  is  pro- 
posed to  notice,  are  those  relating  to  minerals  {x),  and 

(w)  Gordon  v.  Cheltenham  and  Great  Western  Railway  Com- 
pany, 2  Railway  Cas.  800,  872  ;  .S.  C.  5  Beav.  229. 

(x)  As  to  provisions  of  Railways  Clauses  Coosolidation  Act 
on  this  head  (8  Vict.  c.20),  see  act,  s.  77 — 85,  post,  Appendix. 


Powers  of  a  Railway  Company.  119 

intended  for  the  protection  of  the  owners  of  mines 
and  minerals  lying  in  the  route  of  the  railway. 
Under  a  railway  act,  the  company  in  general  take  no 
property  in  the  mines  and  minerals  under  the  lands 
purchased  by  them,  except  so  far  as  may  be  re- 
quired for  the  purposes  of  their  act,  but  the  original 
proprietors  may  work  them,  provided  that  in  so 
doing  no  damage  is  wilfully  done  to  the  railway,  and 
the  mines  are  not  worked  in  an  improper  manner. 
The  company  at  the  same  time  have  the  option  of 
purchasing  so  much  of  the  strata  as  lies  under  or 
within  a  given  distance  of  the  railway,  upon  notice 
of  the  proprietor's  intention  to  commence  working 
such  part  of  the  minerals.  This  option,  however, 
the  company  are  usually  required  to  exercise  within 
avgiven  time  after  the  receipt  of  the  above  notice, 
or  else  it  determines,  and  then  the  owner  becomes 
as  fully  entitled  to  get  this  as  any  other  part  of  the 
mineral  strata  in  question.  The  general  effect  of 
the  above  provision  seems  to  be,  to  throw  upon  the 
company  all  risk  attendant  on  the  future  working  of 
the  mines.  Accordingly,  if,  from  tlie  general  nature 
of  the  soil,  the  course  and  position  of  the  mineral 
strata,  &c.  there  are  substantial  grounds  to  appre- 
hend that  such  working  will  endanger  the  railway, 
they  must  take  care  to  guard  against  the  danger  by 
the  due  exercise  of  the  option  reserved  to  them. 
If  they  neglect  to  do  this,  they  are  then  at  the  mercy 
of  the  mine  owner,  who  may  work  as  freely  as  if 
no  railway  existed,  provided  that  in  so  doing  he 
abstain  from  wilful  damage,  and  any  improper  me- 
thod of  working. 

148.  Sometimes  the  power  of  working  the  mines 
is  given  only  on  the  condition  that  the  owner  do  no 


120        Company  as  constituted  under  the  Act. 

damage  to  the  railway,  or  that  he  make  good  the 
same.  Under  this  latter  provision  the  risk  of  future 
working  must,  it  seems,  fall  upon  the  mine  owner  ; 
he  must,  consequently,  take  care  for  the  future  in 
working  his  mine  to  do  no  damage  to  the  railway, 
or,  if  he  does,  he  must  repair  it ;  and  if,  in  order  to 
avoid  so  doing,  he  is  obliged  to  interrupt  the  working 
of  his  mine,  or  to  work  it  in  a  more  expensive 
manner  than  what  would  otherwise  have  been  neces- 
sary, or  is  otherwise  put  to  inconvenience,  he  cannot 
nevertheless  claim  any  compensation  from  the  com- 
pany (2/)- 

(i/)  Rex  V.  Leeds  and  Selby  Railway  Company,  3  A.  &  E.  683- 
As  to  analogous  provisions  in  canal  acts,  see  Dudley  Cunal  Com- 
pany V.  Grazebrook,  1  B.  ik  Ad.  59  ;  Wyrley  and  Essiugton  Navi- 
gation Company  v.  Bradley,  7  East,  368.  There  a  canal  act  pro- 
vided that  the  canal  company  should  not  be  entitled,  on  purchas- 
ing lands  for  making  a  canal,  to  any  coal  mines,  &c.  under  the 
same,  but  that  such  mines  should  belong  to  the  same  persons  as 
would  have  been  entitled  to  them  if  the  act  had  not  been  made  ; 
but  it  required  the  owners  to  give  notice  to  the  company  ot 
their  intention  to  work  their  mines  within  ten  yards  of  the  canal, 
and  that  the  company  might  inspect  the  mines  and  might  stop 
the  further  working  of  them,  paying  compensation  to  the  owners  ; 
it  was  held  that  the  right  of  the  owners  to  work  within  the  ten 
yards  was  left  as  before  the  act,  if  after  notice  given  by  them 
to  the  company  the  latter  did  not  purchase  out  their  rights  ; 
and  that  the  canal  being  damaged  by  the  nearer  approach  of 
the  mine,  after  such  notice  and  nonpurchase,  no  action  lay  agaiost 
the  coalowner  for  such  injury,  which  happened  by  default  of 
the  company  in  not  purchasing.  Where  under  a  canal  act  the 
Company  required  a  certain  breadth  of  coal  on  each  side  of  the 
canal  to  be  left,  held,  that  lessee  of  coal  entitled  to  compen- 
sation for  loss  he  sustained  by  not  working,  that  is,  to  the  value 
of  the  coal  when  gotten,  deducting  the  expense  of  getting  it  out, 
and  this  independent  of  the  compensation  to  the  reversioner  for 


Powers  of  a  Railway  Company.  121 

149.  It  is  proposed  in  the  next  place  to  speak  of 
a  class  of  provisions,  the  object  of  which  is  to  pro- 
vide for  the  accommodation  [z)  of  the  adjoining  lands 
generally,  and  more  particularly  to  guard  against 
the  interruption  of  the  communication  by  a  railway, 
and  the  mischiefs  incidental  thereto.  It  is  of  these 
provisions,  so  far  as  they  relate  to  the  latter  object, 
that  is  proposed  here  to  speak  more  particularly. 
Now  a  railway,  it  is  obvious,  is  calculated  to  inter- 
fere with  the  communications  of  the  country  through 
which  it  runs  principally  in  two  ways,  1st  by  sever- 
ing land,  and  so  destroying  that  mutual  connexion 
of  its  parts  which  is  necessary  for  their  commodious 
use  and  occupation  ;  and  2ndly,  by  presenting  a  bar- 
rier to  the  opening  of  any  new  channel  of  commu- 
nication, such  as  roads,  &c.  between  the  country  on 
one  side  of  such  railway,  and  that  on  the  other. 

150.  To  remedy  the  former  class  of  mischiefs,  a 
railway  act  usually  provides  that  the  company  shall 
make  and  erect  all  such  gates,  bridges,  arches,  pas- 
sages, &c.,  over,  under,  &c.,  the  railway,  as  two  or 
more  justices  shall,  upon  application  of  the  owners 
of  any  lands,  judge  necessary  (in  case  there  shall 
be  any  dispute  about  the  same)  for  the  use  of  the 
owners  of  the  land  through  which  the  railway 
passes,  and  further  gives  a  liberty  to  the  owners  (a) 

the  value  of  the  coal  in  the  bed.  Barnsley  Canal  Company  v. 
Twibell,  22  Law  Journ,  Ch.  434;  S.  C.  3  Railway  Cas.  471  ; 
7  Beav.  19. 

(2)  As  to  analogous  provisions  of  Railways  Clauses  Consoli- 
dation Act  (8  Vict.  c.  20),  see  act,  s.  68—75,  post,  App. 

(a)  As  to  the  right  of  owners  under  Railways  Clauses  Consoli- 
dation Act  (8  Vict.  c.  20)  to  cross  railway  until  accomiaodatiou 
made,  see  act,  s.  74,  post,  App. 

G 


122        Company  as  constituted  under  the  Act. 

and  occupiers  of  adjoining  knds,  their  servants,  &:c. 
(except  in  cases  where  a  proper  communication  has 
been  made  by  the  company  at  their  own  expense) 
to  cross  without  payment  of  toll,  provided  they  do 
not  thereby  impede  the  traffic.  The  result  of  the 
above  enactments  seems  to  be  this  :  until  the  com- 
pany make  a  communication,  the  owner  may  cross 
where  he  likes,  and  is  not  bound  to  apply  to  the 
company  to  make  him  a  communication,  or  to  the 
magistrates  to  direct  them  to  do  so ;  but  if  a  com- 
munication is  once  made  by  the  company,  he  ceases 
to  have  a  right  of  crossing  at  any  other  place,  but 
must,  if  he  disapproves  of  it,  go  before  the  magis- 
trates, (b) 

151.  A  party  may  lose  this  right  of  crossing  the 
railway  not  only  in  case  of  a  proper  communication 
being  made  for  him  by  the  company,  but  likewise 
(where  the  act  so  provides)  by  an  arrangement  with 
the  company  that  supposes  a  total  separation  of  the 
land.  The  term  "  arrangement"  here  does  not  ne- 
cessarily mean  a  positive  agreement  between  the 
company  and  the  party  ;  but  if  a  party  prefer  before 
the  sheriff's  jury  a  claim  as  for  loss  by  a  total 
severance  of  his  land,  and  receive  compensation 
accordingly,  this  is  an  arrangement  within  the  mean- 
ing of  the  act,  and  debars  the  party  from  afterwards 
crossing  the  railway  for  the  occupation  of  his  land.(c) 

(6)  The  Grand  Junction  Railway  Company  v.  White,  2  Rail- 
way Cas.  559  ;  S.C.  Q  M.  6e  W.  214.  This  right  of  crossing 
was  held  not  to  be  taken  away  by  a  subsequent  section  of  the 
same  act,  which  prohibited  any  one  riding,  &c.,  upon  the  rail- 
way, except  in  crossing  at  places  to  be  appointed  for  that  pur- 
pose, 6cc.,  as  the  latter  section  was  taken  to  be  qualified  by  the 
former  that  conferred  the  above  right. 

(r;)  l^hiniiing  v.  Eaiterrt  Counties  Railway  Company,  12  M. 
&  VV.  237  ;  S.  C.  22  Law  Journ.  Exch.  265. 


Powers  of  a  Railway  Company.  12^ 

152.  Sometimes  a  landowner  stipulates  with  the 
company  for  a  communication  of  a  certain  ascer- 
tained kind  ;  this  may  naturally  be  expected  to  be 
the  case  wherever,  from  the  circumstances  of  the 
property  or  the  mode  in  which  it  is  to  be  affected 
by  the  railway,  the  diminution  or  loss  of  the  pre- 
existing means  of  communication  would  be  calcu- 
lated fatally  to  deteriorate  its  value  ;  as,  for  instance, 
where  the  line  of  railway  runs  right  through  a  large 
property,  or  in  the  neighbourhood  of  a  mansion. 
Under  such  circumstances,  the  covenantee  has  ob- 
viously a  very  material  interest  in  the  performance 
of  the  contract  by  the  company,  an  interest  so  ma- 
terial as  to  render  its  nonperformance  in  general 
incapable  of  being  adequately  compensated  by  da- 
mages :  a  court  of  equity  will  accordingly  decree 
the  specific  performance  of  the  contract,  the  object 
of  it  being  a  clearly  and  distinctly  defined  act,  to  be 
performed  on  the  covenantor's  own  land,  and  the 
other  side  materially  interested. 

153.  A  railway  company  covenanted  with  a  party, 
through  whose  park  the  line  of  railway  was  intended 
to  run,  to  construct  him  an  archway  of  given  dimen- 
sions at  such  place  as  the  latter  should  think  most 
convenient  in  his  pleasure  grounds.  The  company 
having  neglected  to  comply  with  the  party's  request 
to  fulfil  the  covenant,  he  filed  a  bill  against  them  to 
compel  a  specific  performance,  which  was  decreed 
accordingly,  (d) 

154.  To  remedy  the  second  species  of  inconveni- 
ence, it  is  usually  provided,  that  the  act  is  not  to 

(d)  Storer  v.  Great  Western  Railway  Com-pany,  3  Railway 
Cas.  106 ;  S.  C.  2  Y.  &  Coll.  .V.  C.  48. 


124       Company  as  constituted  under  the  Act. 

prevent  the  owners  of  adjoining  lands,  under  certain 
restrictions  necessary  for  the  protection  of  the  rail- 
way company,  making  branches  &c.,  to  communicate 
with  and  fall  into  the  main  railway,  or  communi- 
cating across  such  railway,  (e)  Such  a  provision,  it 
seems,  is  tantamount  to  a  statutory  declaration,  that 
the  railway  in  question  shall  be  no  obstacle  to  the 
continuation  of  any  roads,  &c.,  that  already  exist,  or 
may  be  legally  formed,  in  a  direction  to  cross  or  fall 
into  such  railway ;  but  that  parties  shall  be  at 
liberty  to  carry  their  communications  over  the  rail- 
way as  they  might  have  done  over  the  same  space 
or  area  before  it  was  occupied  by  any  railway.  {/) 
No  limitation  accordingly,  except  what  is  provided 
in  the  restrictions  above  alluded  to,  can  in  general 
be  put  on  the  right  to  make  or  use  roads,  branch 
railways,  &c.,  under  the  above  provision  in  any 
number  or  direction,  or  for  any  purpose  that  parties 
may  please,  even  though  they  are  made  in  such 
situations  as  to  interfere  or  compete  with  that  of 
the  company.  (/) 

(e)  As  to  power  to  make  branch  railways  under  Railways 
Clauses  Consolidation  Act  (8  Vic.  c.  20,)  see  act,  s.  76,  post, 
Appendix. 

(/)  Monklandand  KirkintiLlnch  Railway  Company  v.  Diion, 
3  Railway  Cas.  273.  In  that  case  the  80th  clause  of  the  com- 
pany's act  was  as  follows,  viz.  that  nothing  therein  contained 
should  be  construed  to  prevent  any  owner  or  occupier  of  any 
ground,  through  which  the  said  railway  might  pass,  from  carry- 
ing, at  his  or  their  own  expense,  any  railway  or  other  road,  or 
any  cut  or  canal,  which  such  owner  or  occupier  was  authorized 
to  make  in  his  or  her  lands  and  grounds,  across  the  said  main 
railway,  within  the  lands  of  such  owner  or  occupier,  &c.  See 
also  the  79th  clause.  See  also  judgment  of  Wigrara,  V.  C.  in 
North  Union  Railway  Company  v.  Bolton  and  Preston  Eailuiay 
Company,  3  Railway  Cas.  364. 


Powers  of  a  Railway  Company.  125 

155.  Even  where  a  statute  requires  a  party  to  be 
©ccupier  of  the  land  on  both  sides  the  railway,  to 
entitle  him  to  the  benefit  of  the  above  provision,  it 
is  not,  it  should  seem,  on  this  account  to  be  con- 
strued to  mean  simply  roads  for  the  special  service 
and  benefit  of  such  land  ;  at  any  rate,  its  operation 
is  not  to  be  confined  to  land  held  as  one  estate  at 
the  time  the  original  railroad  was  made.  Where 
therefore  one,  who  held  land  through  which  a  rail- 
way passed,  subsequently  took  a  lease  of  the  adjoin- 
ing land,  it  was  held  that  he  had  a  right  under  a 
provision  such  as  that  last  supposed,  to  make  a 
branch  railway  across  the  main  line,  communicating 
with  the  subsequently  demised  property,  (g-) 

156.  Srdly.  Of  the  company' s  powers  ofalienation.(h) 
Looking  at  the  general  character  of  a  railway  com- 
pany, and  the  design  of  its  institution,  such  a  com- 
pany cannot,  it  is  conceived,  be  taken  to  enjoy  any 
other  powers  of  ahenation  than  what  are  expressly 
vested  in  it  by  its  act  of  incorporation.  To  examine 
the  nature  and  extent  however  of  the  above  powers 
more  particularly,  let  us  consider  them  as  they  relate, 
1st,  to  sales  ;  2dly,  to  mortgages  ;  and  3dly,  to  the 
granting  of  leases. 

157.  1st,  As  to  the  company's  powers  of  sale. 
The  company  are  usually  empowered  by  their  act 
to  sell  surplus  lands,  (?)  subject  however  to  this  pro- 

(g)  See  page  124,  note  (f). 

(h)  As  to  restriction  of  express  powers  of  selling  or  leasing 
railways,  given  by  the  acts  of  parliament  relating  to  such  rail- 
ways, see  8  &  9  Vic.  c.  96,  post,  App. 

(i)  As  to  provisions  of  Lands  Clauses  Consolidation  Act, 
(8  Vic.  c.  18)  on  the  subject  of  the  sale  of  lands  purchased  for 
extraordinary  purposes,  see  act,  s.  13,  post,  Appendix.  See 
same  of  snrplus  lands,  ib.  s.  127 — 131,  post.  Appendix. 


1 26       Company  as  constituted  under  the  Act. 

viso,  that,  before  disposing  of  them,  they  offer  them 
in  the  first  instance  to  the  owners  of  the  adjoining 
lands.  The  effect  of  this  proviso  is  to  interpose  a 
sort  of  conditional  obstruction  to  the  conveyance  of 
such  lands.  The  company  therefore  are  not  inca- 
pacitated thereby  to  contract  for  the  sale  of  such 
lands  ;  though  they  cannot  carry  such  contract  into 
execution  till  the  requisite  offer  is  made  and  de- 
clined by  the  parties  entitled  to  the  right  of  pre- 
emption, {k) 

158.  2nd,  As  to  the  company's  powers  of  mort- 
gaging. {I)  Under  the  usual  provisions  of  a  rail- 
way act,  the  company  are  empowered  to  mortgage 
the  undertaking  and  tolls.  This  does  not  seem  to 
authorize  a  mortgage  of  the  company's  land,  {m) 

159.  3rd,  Of  the  company's  powers  of  leasing,  (n) 
According  to  the  usual  provisions  of  a  railway  act, 
the  company  are  empowered  to  grant  leases  of  the 
rates  and  tolls  payable  under  the  act.  To  suppose 
them  possessed  of  leasing  powers,  which  should  go 
beyond  this,  and  include  the  railway,  and  the  stations, 
warehouses,  &c.,  belonging  thereto,  (in  the  absence, 
that  is  to  say,  of  an  express  provision  for  the  pur- 
pose) would  not  be  without  its  difHculties.    Railway 

(/c)  17<e  London  and  Greenwich  Railway  Company  v.  Good- 
child,  22  Law  Journ.  Ch.  224  ;  S.C.Z  R.  Cas.  507. 

(0  As  to  power  of  mortgaging  under  Companies  Clauses 
Consolidation  Act  (8  Vict.  c.  16)  see  act,  s.  38,  post,  Ap- 
pendix. 

(m)  See  Doe  d.  Myatt  v.  St.  Helen'iand  Runcorn  Gap  Rail- 
way Company,  2  A.  &  E.  N.  S.  364;  S.  C.  2  Railway 
Cas.  756. 

(7i)  For  provisions  of  Railways  Clauses  Consolidation  Act 
(8  Vict.  c.  20.)  as  to  leasing  of  railway,  see  act,  ss.  112,  113, 
post,  Appendix. 


Powers  of  a  Railway  Company.  127 

acts  in  general  embody  various  regulations  of  police 
relative  to  the  carriages,  engines,  &c.,  to  be  brought 
on  the  railway,  which  the  company  are  charged  to 
enforce ;  and  it  is  very  questionable  whether  their 
lessee  could  be  their  delegate  as  to  this  trust ;  while 
it  is  certain  that  the  company  out  of  possession  could 
not  discharge  the  duty  so  conveniently  or  perfectly 
as  where  they  are  in  possession,  (o) 

II. — Of  the  Suspension,  Cesser,  or  Determination  of 
the  Powers  of  the  Company. 

160.  We  have  in  the  next  place  to  treat  of  the 
suspension,  cesser,  or  determination  of  the  above 
powers.  This  may  be  brought  about  in  various 
ways  ;  1st,  by  the  failure  of  the  consideration  on 
which  they  are  granted ;  2nd,  by  the  completion  of 
the  object,  for  the  execution  of  which  such  powers 
are  granted  ;  and  Srdly,  by  the  lapse  of  time. 

161,  1st,  Of  a.  Failure  of  the  Consideration, 
and  its  effect  in  determining  either  temporarily  or 
absolutely  the  compulsory  powers  of  a  company. 
Such  a  failure  of  consideration  may  arise  in  two 
ways,  either  from  something  in  the  company's  own 
state,  condition,  or  conduct ;  or  2dly,  from  matter  ex- 
trinsic. First,  powers  such  as  those  under  consider- 
ation, interfering  so  extensively  with  private  rights 
and  private  property,  are  of  course  never  granted 
by  the  legislature,  save  in  consideration  of  some  great 
public  good,  which  it  is  hoped  to  attain  through  the 
medium  of  the  undertaking  to  be  completed  by 
virtue  of  those  powers ;  a  good,  which,  in  the  eyes 

(o)  See  judgment  of  Lord  Denman,  C.  J.  in  Reg.  v.  London 
and  South  Western  Railway  Company,  1  A.  &  E.  N,  S.  580. 


128       Company  as  constituted  under  the  Act. 

of  the  legislature,  is  of  so  paramount  a  nature  as  to 
counterbalance  the  amount  of  suffering  inflicted  in 
consequence  on  individuals.  The  powers  in  ques- 
tion consequently  must  be  regarded  as  enjoyed  on  a 
certain  condition,  viz.  that  the  company  shall,  by 
completing  their  undertaking,  enable  the  public  to 
reap  the  benefit,  which  is  to  be  the  equivalent  for 
the  sacrifice  made  by  individuals.  Wherever,  there- 
fore, it  appears  that  the  undertaking  cannot  be  com- 
pleted, and  that  the  public  cannot  consequently 
derive  the  proposed  benefit,  this,  it  seems,  is  clearly 
so  substantial  a  breach  of  the  condition  in  question, 
as  must  be  taken  to  involve  a  cesser  of  such  powers 
either  temporary  or  absolute,  according  as  the 
obstacle  in  the  way  of  the  fulfilment  of  the  design  is 
or  is  not  capable  of  ultimately  being  removed.  Sup- 
pose therefore  that  a  railway  company  procure  an 
act  for  the  formation  of  a  railway  over  a  given  line 
of  country,  on  a  representation  that  a  particular  sum 
will  enable  them  to  complete  it,  and  that  subse- 
quently they  prove  unable  to  complete  their  works 
either  from  the  admitted  inadequacy  of  the  sum 
contemplated  by  the  legislature,  or  from  a  failure  to 
raise  that  sum,  a  court  of  equity  would,  it  seems, 
interfere  to  protect  an  individual  against  any  exer- 
cise on  the  part  of  the  company  of  the  powers 
delegated  by  the  act,  so  long,  at  least,  as  any  such 
supposed  incapacity  should  continue  to  operate,  and 
until  it  should  be  made  apparent  that  the  public 
would  derive  from  that  exercise  the  benefit  intended 
them  by  the  act.(p)    A  company  would  seem  to  sub- 

(p)  Blakemnre  v.  The  Glamorganshire  Canal  Navigation,  1 
M.  &  K.  164  ;  Mayor,  ^c.  of  King's  Lynn  v.  Pemberlon,  1 
Swans.  250 ;    Agar  v.  The   Regent's   Canal    Company,    Coop. 


Powers  of  a  Railway  Company.  129 

ject  themselves  to  a  like  cesser  of  their  powers,  by 
any  substantial  departure  from  the  plan  of  the  under- 
taking contemplated  by  parliament,  as,  for  instance, 
if  they  deviate  the  actual  line  of  the  railway  into 
property  not  comprehended  in  their  act,  (q)  or 
change  the  terminus  of  their  railway,  and,  instead  of 
proceeding  to  some  large  town  or  city,  make  it  to 
terminate  in  an  obscure  village,  (r)  But  to  procure 
the  interference  of  a  court  of  equity  on  this  latter 
ground,  it  must  it  seems  be  shown  that  the  devia- 
tion is  final,  and  that  the  plan  contemplated  by  the 
act  can  never  consequently  be  completed.  If  there 
is  no  final  abandonment  of  the  parliamentary  plan — 
if  it  is  still  within  the  power  of  the  company — and, 
as  far  as  appears  within  their  intention  also,  to 
change  their  resolution  and  complete  their  line  of 
railway  according  to  the  original  design,  the  court 
would  hardly,  it  is  conceived,  grant  an  injunction 
against  them  to  prevent  their  getting  possession  of 
land  which,  for  aught  that  the  court  can  tell,  they 
may  apply,  when  taken,  strictly  in  accordance  with 
the  purposes  of  the  act.  (5)  Neither,  it  seems, 
would  a  court  of  equity  entertain  the  application 
of  a  party  for  an  injunction  against  the  company  on 

77  ;  S.  C.  cited,  1  Swans,  ubi  supra;  Lee  v.  Milner,  2  Y.&cC. 
619 ;  Thicknesse  v.  Lancaster  Canal  Company,  4  M.  &  W.  491. 
But  see  judgment  of  Lord  Chancellor  in  Salmon  v.  Randall,  3 
M.  &  Cr.  444. 

(q)  See  judgments  of  Parke  and  Alderson,  Bs.  in  Doe  d.  Payne 
V.  The  Bristol  and  Exeter  Railway  Company,  2  Railway  Cas. 
97  ;  S.  C.6  M.  &  W.  320  ;  Blakemore  v.  The  Glamorganshire 
Canal  Company,  1  M.  &  K.  163  ;  Lee  v.  Milner,  2  M.  &  W. 
840. 

(r)  Lee  v.  Milner,  2  Y.  &  C.  619,  judgment  of  Alderson,  B. 

(s)  Lee  V.  Milner,  2  Y.  &  C.  611. 
G  5 


130       Company  as  constituted  under  the  Act. 

the  ground  of  deviation,  without  he  can  show  that 
his  interests  are  adversely  affected  thereby.  (<)  A 
landowner  for  instance  cannot  complain  of  a  varia- 
tion of  the  line  of  railway  at  a  distant  point  made 
with  the  consent  of  the  landowner  there,  and  no 
way  affecting  his  own  property,  (t) 

162.  2dly.  Of  a  failure  of  consideration  from  extrin- 
sic circumstances.  The  rule  is  the  same,  where  the 
object  of  the  legislature  in  incorporating  the  com- 
pany, and  endowing  them  with  compulsory  powers, 
is  frustrated  by  extrinsic  circumstances.  But,  if  a 
part  of  the  object  can  be  shown  to  exist,  the  com- 
pany would  at  any  rate  be  entitled  to  proceed  with 
their  railway  so  far  as  to  effectuate  the  intention  of 
the  legislature  to  the  extent  that  it  is  still  practicable. 
An  act  of  parliament  gave  a  right  to  carry  on  a  rail- 
way with  a  view  to  a  twofold  advantage  ;  to  carry 
the  coal  of  the  proprietors  on  cither  side  of  such 
railway  to  H,  and  beyond  that  to  communicate  with 
another  railway,  then,  as  it  was  supposed,  about  to 
be  constructed.  It  was  held,  that  even  though  this 
latter  railway  were  subsequently  abandoned,  the 
former  might  still  be  completed  up  to  such  a  point 
as  to  enable  the  company  to  accomplish  the  former 
part  of  their  object,  (m) 

163.  2dly.  Of  Determination  of  Powers  by 
Completion  of  Object.  Compulsory  powers  may 
become  extinct  by  reason  of  the  completion  of  the 
purposes  for  which  they  are  grantad.  (v)     Such  a 

(f)  Lee  V.  Milner,  2  Y.  &  C.  611. 

(u)  Clarence  Railway  Company  v.  The  Great  North  of  Eng- 
land, Clarence  aiid  Hartlepool  Junction  Baihvay  Company,  2 
Railway  Cas.  780  ;  S.C.6  Jur,  269. 

(v)  Blakemore  v.  The  Glamorganshire  Canal  Navigation,  1 
M.  &  K.  165 ;  Salmon  v.  Randall,  3  M.  &  Cr.  446. 


Powers  of  a  Railway  Comfany.  131 

limitation  indeed  is  obviously  implied  in  the  very 
nature  of  powers  of  the  above  description,  which  are 
only  granted  for  the  attainment  of  a  certain  object. 
A  distinction  however  must  be  here  taken  according 
as  the  act  contemplates  a  certain  defined  purpose,  or 
a  continuing  one.  In  the  former  case,  when  once 
the  purpose  is  accomplished,  the  power  incidental 
thereto  may  fairly  be  taken  to  cease.  For  instance, 
a  railway  act  requires  a  specific  line  of  road  to  be 
made  between  certain  termini,  and  for  this  purpose 
gives  to  the  undertakers  compulsory  powers  of  pur- 
chasing land,  &c. ;  those  powers  become  extinct 
the  instant  their  object  is  accomplished  by  the  com- 
pletion of  the  contemplated  line.  If  any  alteration 
therefore  subsequently  becomes  requisite,  there 
must  be  an  application  by  the  undertakers  to  parlia- 
ment for  an  extension  of  their  powers  ;  (a;)  on  the 
other  hand,  the  statute  may  contemplate  some  con- 
tinuing object,  and  one  consequently  which  from 
its  very  nature  requires  that  the  powers  given  by 
the  statute  should  be  exercisable  from  time  to 
time,  (y)  Under  this  head  would  seem  to  fall  what 
is  usually  one  of  the  main  objects  contemplated  by 
a  railway  act,  viz.  the  maintenance  of  the  railway 
when  constructed.  In  the  absence  accordingly  of 
any  express  limitation  by  statute,  all  powers  inci- 
dental to  such  object,  such  for  instance  as  the  power 
of  entering  on  adjoining  lands,  and  taking  the  ne- 
cessary materials  for  the  repair  of  the  railway, 
would  not  seem  to  be  exhausted  by  being  once  ex- 
ercised, but  to  admit  of  being  exercised  afresh  from 

(i)  Blakemore  v.  The  Glamorganshire  Canal  Company,  1  M. 
&  K.  165. 

(y)  Salmon  v.  Randall,  3  M.  &  Cr.  440. 


132       Company  as  constituted  under  the  Act. 

time  to  time,  as  the  company,  acting  on  a  reasonable 
discretion,  may  see  occasion,  (z) 

164.  Srdly.  Of  Determination  of  Powers  by 
Lapse  of  Time.  A  railway  act,  in  general,  pre- 
scribes a  time  within  which  the  powers  that  it  con- 
fers must  be  exercised,  and  the  works  completed.  If 
this  cannot  be  done  within  the  specified  time,  the 
company  must  apply  to  the  legislature  for  an  exten- 
sion of  their  powers.  But  if  the  act  of  parliament 
fix  no  time  within  which  its  provisions  are  to  be 
executed,  they  must  then  it  seems  be  taken  to  con- 
tinue till  the  company  think  proper  to  execute  the 
work  ;  and  no  limitation  can  be  implied  as  to  their 
being  executed  within  a  reasonable  time  from  the 
passing  of  the  act.  (a)  Possibly,  however,  a  Court 
of  Equity  might  be  willing  to  interfere,  where  there 
should  be  shown  to  have  been  a  continued  inaction 
on  the  part  of  the  company,  and  that  for  so  long  a 
period  of  time  as  to  have  misled  parties  into  a  se- 
rious change  of  condition,  and  one  to  which  any 
fresh  exercise  of  their  powers  on  the  part  of  the 
company  might  be  fatally  prejudicial.  As  for  in- 
stance, if  a  railway  company  were  to  lie  by  for  a 
considerable  time,  and  suffer  the  owners  of  pro- 
perty (which  their  act  empowered  them  to  take)  to 
make  improvements  and  erections,  and  incur  ex- 
penses on  it,  a  Court  of  Equity  might,  under  such 
circumstances,  be  inclined  to  say  that  they  should 
be  prevented  from  going  on  with  their  works  at  that 

(:)  Provision  is  now  made  for  the  extension  of  powers  of  rail- 
way companies  in  certain  cases  by  stat.  5  &  6  Vict.  c.  55,  ss.  14 
and  15,  see  post.  Cap.  6  and  Appendix. 

(a)  Thicknesse  v.  The  Lancaster  Canal  Company,  4  M.  6c  W. 
491. 


Powers  of  a  Railway  Company.  133 

late  period,  and  destroying  that  which  would  never 
have  been  done  but  for  their  negligence,  (ft) 

III. — Of  the  Revival,  Sfc,  of  Powers  of  Company. 

165.  We  have  in  the  next  place  to  treat  of  the 
revival,  &c.  of  compulsory  powers,  supposing  them  to 
have  expired,  &c.  in  any  of  the  ways  above  specified. 
This  we  have  already  seen  can  only  be  effected  by 
the  act  of  the  legislature.  In  treating  of  the  ope- 
ration of  any  such  statute,  there  are  three  questions 
that  present  themselves  for  consideration  ;  1st,  to 
what  extent  are  the  powers  of  the  old  act  revived  by 
the  new  ?  2ndly,  how  far  such  act  operates  on  pro- 
ceedings already  taken  under  the  the  prior  act  ?  Srdly, 
what  is  the  subject  matter,  to  which  the  renewed 
powers  must  be  taken  to  apply  ? 

166.  1st.  The  new  act  is  usually  made  to  embody, 
by  way  of  reference,  the  powers  given  under  the 
old,  only  extended  over  a  further  period  of  time ; 
the  effect  of  this  reference  seems  to  be  much  the 
same  as  if  there  had  been  an  express  enumeration 
of  such  powers  inserted  in  the  later  act.  (c)  An  act 
of  parliament,  establishing  the  Northern  and  East- 
ern Railway  Company,  empowered  them  to  con- 
struct arches,  &c.  over  streets,  (c)  and  to  erect 
stations  upon  the  railway  and  adjoining  lands,  and 
generally  to  do  all  other  things  necessary  or  conve- 
nient for  the  construction  of  the  railway  and  other 
works.  A  subsequent  act  empowered  the  company 
to  construct  a  station  and  depot  in  London  ;  and  by 

(6)  Judgment  of  Lord  Abinger,  C.  B.  4  M.  &  W.  491. 

(c)  The  Alt.  Gen.  v.  The  Eastern  Counties  Railway  Company, 
and  the  Northern  and  Eastern  Railway  Company,  21  Law 
Journ.  Exch.  106;  S.  C.  10  M.&  W.  263. 


134        Cowpany  as  constituted  under  the  Act. 

it  it  was  enacted,  that  all  the  powers,  provisions,  &c. 
of  the  old  act  should  apply  to  the  purchase  of  lands, 
&c  for  such  station,  &c.  It  was  held  that,  under 
the  above  acts,  the  company  were  empowered  to 
arch  over  a  public  thoroughfare  for  the  erection  of 
such  station. 

167.  But,  2ndly,  Is  the  new  act  to  be  deemed 
retrospective  in  its  operation,  so  as  to  enable  the 
company  to  carry  into  effect  proceedings  taken  under 
the  old?  This  must  depend  upon  the  provisions  of 
the  new  act,  and  whether  they  are  framed  with  a 
reference  to  bygone  transactions,  so  as  to  manifest 
the  intention  of  the  legislature  to  give  effect  to  the 
same,  (r/)  An  inquisition  was  taken  under  a  rail- 
way act  that  subsequently  expired.  A  fresh  act  was 
passed  by  which  it  was  declared,  that  upon  payment 
of  such  sum  of  money  as  shoidd  have  been  agreed 
upon,  or  awarded  by  a  jury  in  the  manner  prescribed 
by  the  old  act,  &c.,  it  should  be  lawful  for  the 
company  to  enter,  &c.  It  was  held  that  this  ena- 
bled the  company  to  act  upon  the  old  inquisition, 
and  that  a  payment  of  the  amount  assessed  by  the 
jury  after  the  passing  of  the  new  act  was  conse- 
quently effectual  to  give  them  a  title  to  the  pro- 
perty, {d) 

168.  The  3rd  question  respects  the  subject  mat- 
ter to  which  the  revived  powers  must  be  taken  to 
apply.  Where  the  company  adhere  throughout  to 
the  original  line  of  railway,  no  question  can  of 
course  arise  upon  this  point.  But,  suppose  that  the 
company  adopt  a  line  which  is  a  deviation  from  the 

(d)  Doe  d.  Payne  v.  The  Bristol  and  Exeter  Railway  Com- 
pany, 2  Railway  Cas.  75  ;  S.  C.  6  M.  &  W.  320. 


Powers  of  a  Railway  Company.  135 

parliamentary  line,  (being  empowered  so  to  do  by 
their  original  act)  and  then  take  fresh  powers  under 
a  second  act  which   gives    them  further  time  ;    to 
what,  it  may  be  asked,  do  those  enlarged  powers 
apply ;  to  the  original,  or  to  the  substituted  line  ? 
Looking  at  the  state  of  facts  existing  at  the  date  of 
the  second  act,  the  only  reasonable  construction  is 
to  hold  them  to  apply  to  the  latter,  since  it  is  im- 
possible to  suppose  that  the  legislature  could  mean 
to  grant  or  the  company  to  take  new  powers  over  a 
line,  which  they  have  abandoned,  and  no  powers 
over   the  line,  which  they  are   supposed    to    have 
adopted  in  lieu  of  their  original  line,  (e)     But  sup- 
pose that  the  act,  in  according  the  company  a  further 
extension  of  their  powers,  prohibits  any  further  de- 
viation after  the  period  limited  by  the  first  act,  the 
position  of  the  company  is  so  far  altered  thereby, 
that,  at  the  expiration  of  the  period  to  which  their 
power  of  deviation  is  limited,  they  are  fixed  to  the 
line  which   they  have   then   selected,   and   can  no 
longer  alter  or  vary  it ;  but  on  the  line  as  so  altered 
under  the  powers  of  the  original  act,  they  are  enti- 
tled to  extended  powers  for  the  time  prescribed  by 
their  new  act.(e)     They  may,  accordingly,  after  the 
expiration  of  their  original  act,  and  the  consequent 
cesser  of  all  further  power  of  deviation,  still  take 
compulsory  possession  of  lands  on  the  line  to  which 
they  have  deviated  at  a  preceding  period,  (e) 

(e)  River  Dun  Navigation  Company  v.  North  Midland  Rail- 
way Company,  1  Railway  Cas.  135. 


(     136     ) 


Sub-Sect.  3. — Of  the  Rights  of  a  Railway  Company. 

I.  Rights  in  general. 
II.  Rights  in  respect  of  particular  Contracts,  viz. 

1 .  For  Purchase,  &c.  of  Land. 

2.  For  Performance  of  Works. 

169.  I.  Rights  in  general.  From  the  notice  of  the 
powers  of  a  railway  company,  we  are  naturally  led 
to  an  examination  of  the  rights  incidental  to  the  ex- 
ercise of  those  powers. 

A  railway  company,  we  have  seen,  is  capable,  to 
a  certain  extent,  of  taking  and  enjoying  property, 
both  real  and  personal.  Where,  in  pursuance  of 
this  power,  they  acquire  any  kind  of  property,  they 
become  entitled  to  all  the  ordinary  privileges  of 
ownership,  subject,  of  course,  to  such  restrictions  as 
are  engrafted  thereon  either  by  their  particular  act, 
or  by  the  general  acts  relating  to  railways,  (f) 

170.  So  likewise  a  railway  company  is  capable  of 
contracting  and  being  contracted  with,  so  far  as  is 
necessary  for  the  attainment  of  the  ends  of  its  insti- 
tution, and  under  certain  restrictions  as  to  the  form 
of  the  contract. 

These  restrictions  are  twofold  :  first,  the  contract 
must  be  made  with  the  company  in  its  politic  capa- 
city ;  and  secondly,  it  must  either  be  under  the 
common  seal  of  the  company,  or  under  the  hands  of 
the  requisite  number  of  directors.  Contracts,  how- 
ever, very  frequently  occurring  or  too  insignificant 
to  be  worth  the  trouble  of  affixing  the  common  seal, 

(/)  See  as  to  these  acts,  Cap.  6,  post. 


Rights  of  a  Railway  Company.  137 

or  which  fall  within  the  very  scope  and  purpose  of 
the  company's  incorporation,  would  seem  to  con- 
stitute established  exceptions  to  the  above  rule,  {g) 
so  far,  that  is  to  say,  as  it  regards  the  necessity  of 
a  contract  being  concluded  under  the  common  seal 
of  the  company  :  and  although,  in  the  first  instance, 
a  contract  be  wanting  in  the  above  requisites,  and 
so  cannot  operate  as  the  contract  of  the  body  corpo- 
rate, still,  if  a  subsequent  recognition  and  adoption 
of  the  contract  can  be  shown  on  the  part  of  the  cor- 
poration, such  as  renders  it  binding  on  them,  they 
become  in  their  turn  entitled  to  claim  the  perform- 
ance of  it  from  the  other  side.  (/«)  So  where  the 
contract  is  executed  by  the  company,  and  the 
other  party  in  consequence  receives  the  full  consi- 
deration, (i) 

171.  Supposing  then  that,  in  the  exercise  of  the 
above  power,  the  company  concludes  any  contract, 
it  is,  generally  speaking,  subject  to  the  like  rules  of 
construction,  and  productive  of  similar  results  as  the 
contract  of  any  ordinary  person  ;  this  may  be  in- 
stanced by  the  consideration  of  one  or  two  particular 
classes  of  contracts  more  particularly  appropriate  to 
the  objects  of  a  railway  company  and  the  purposes 
of  their  incorporation,  and  therefore  such  as  they  are 

(g)  Beverley  v.  Lincoln  Gas  Light  and  Coke  Company,  6  A. 
&  E.  829  ;  5.  C.  2  N.  &  P.  283  ;  Church  v.  Imperial  Gas  Light 
and  Coke  Company,  6  A.  &  E.  846  ;  S.  C.  3  N.  &  P.  35  ;  Arnold 
V.  Mayor  of  Pool,  4  M.  &  Gr.  860;  Fishmongers'  Company  v. 
Robertson,  5  M.  &  Gr.  131,  and  cases  there  cited.  Hall  v. 
Mayor,  S^c.  of  Swansea,  5  A.  &  E.  N.  S.  526. 

(h)  London  and  Birmingham  Railway  Company  v.  Winter, 
1  Cr.  &  Ph.  57. 

(i)  Fishmongers'  Company  v.  Robertson,  5  M.  &  Gr.  131. 


138       Company  as  constituted  under  the  Act, 

perpetually  called  on  to  conclude,  viz.  contracts  for 
the  purchase,  &c.  of  land,  and  for  the  performance 
of  works. 

172.  II.  Rights  in  respect,  1st,  Of  Contracts 
FOR  THE  Purchase,  &c.  of  Land.  Suppose  that  a 
railway  company  enter  into  an  agreement  for  the 
purchase  of  land,  and  that  they  perform  their  part 
of  the  agreement,  they  may  insist  on  a  specific  per- 
formance of  the  contract  by  the  opposite  party.  (A") 
If  the  agreement  is  purposely  framed  so  as  to  ex- 
clude certain  points  which  form  the  subject  of  a 
prior  understanding  between  the  contracting  parties, 
this  cannot,  it  seems,  operate  to  defeat  the  contract, 
nor,  by  consequence,  be  a  reason  for  a  court  of  equity 
refusing  a  specific  performance  thereof,  though  it 
might  have  this  effect,  viz.  that  the  court  would 
not  decree  a  specific  performance  without  taking 
care  that  the  other  party  should  have  the  benefit  of 
such  an  understanding.  (A-)  Accordingly,  on  the 
company  undertaking  to  perform,  what  was  thus 
understood,  they  may  claim  to  have  a  specific  per- 
formance of  the  contract  decreed  immediately. 

Even  though  such  a  contract  may  not  be  binding 
on  the  company  in  the  first  instance,  having  been 
entered  into  by  an  agent  of  the  company  not  au- 
thorized under  their  common  seal,  still,  if  they  adopt 
and  make  it  their  own  by  acting  upon  it,  (as  for 
instance,  by  taking  possession  of  the  land  forming 
the  subject  of  such  contract,  and  making  a  railway 
over  it,)  they  become  entitled  to  have  it  specifically 
performed  in  their  favour.  (A) 

(fc)  London  and  Birmingham  Railway  Company  v.  Winter, 
1  Cr.&  Ph.  57. 


Rights  of  a  Railway  Company.  139 

173.  Sale  of  surplus  land.  We  have  seen  that  a 
railway  company  are  in  general  empowered  by  their 
act  to  sell  surplus  lands,  first  offering  them  to  the 
owners  of  the  adjoining  lands  ;  supposing  then  that 
they  enter  into  a  contract  for  the  sale  of  such  lands, 
after  having  first  duly  offered  them  to  the  parties 
entitled  to  the  right  of  pre-emption,  who  decline 
the  purchase,  they  may  clearly  insist  on  a  specific 
performance  of  such  contract  by  the  purchaser  ;  and 
even  though  the  offer  is  not  made  and  declined  till 
after  the  contract  is  entered  into,  the  purchaser  is 
still  bound  to  complete  his  contract,  and  the  com- 
pany accordingly  may  enforce  a  specific  perform- 
ance of  the  same,  though  they  are  not,  it  seems, 
under  such  circumstances,  entitled  to  the  costs  of 
the  suit.  (/) 

174.  2dly.  Of  Contracts  for  the  Performance 
OF  Works  ;  and  herein,  1st,  of  the  general  effect  of 
such  contracts  ;  2ndly,  of  some  particular  stipula- 
tions usually  introduced  into  the  same. 

175.  1st.  Of  the  general  effect  of  such  contracts. 
These  contracts  are  usually  entered  into  by  ad- 
vertisement and  tender.  A  party  who  agrees  in 
this  manner  to  take  a  contract  is  absolutely  bound 
by  the  terms  of  it,  and  cannot,  because  he  after- 
wards finds  it  disadvantageous,  turn  round  upon  the 
company  and  claim  to  be  relieved  from  it;  (m)  this, 
of  course,  supposes  that  there  has  been  perfect  good 
faith  on  the  part  of  the  company,  since  if  they  could 
be  fixed  with  fraud  or  misrepresentation,  or  with 

(/)  Londnn  and  Greenwich  llailway  Company  v.  Goodchild, 
22  Law  Journ.  Ch.  224 ;  S.  C.  3  Railway  Cas.  507. 

(m)  Ranger  v.  The  Great  Western  Railway  Company,  3  R. 
Cas.  298. 


140       Company  as  constituted  under  the  Act. 

having  otherwise  taken  any  undue  advantage  of  the 
contractor  in  the  course  of  the  negociation,  that 
might  give  him  a  title  to  relief.  The  evidence,  howr- 
ever,  in  support  of  a  charge  of  fraud  must  be  clear 
and  cogent,  and  it  is  not  enough  for  the  contractor 
simply  to  show  that  the  statements  of  the  company 
touching  the  nature  of  the  work,  &c.  conveyed  in- 
adequate information,  where  he  might,  by  reason- 
able diligence  and  inquiry  himself,  have  acquired 
the  necessary  information,  and  the  terms  of  the 
contract  made  it  expressly  incumbent  on  him  to  do 
so.  (w) 

176.  Where  such  a  contract  contains  conditions 
precedent  to  be  performed  on  the  part  of  the  com- 
pany, the  latter,  to  give  themselves  a  right  under 
such  contract,  to  complain  of  the  conduct  of  the 
other  party,  must  show  a  performance  of  those  (o) 
conditions ;  though  it  is  otherwise  where  the  cove- 
nants on  either  side  are  independent. (o)  The  proper 
test  by  wliich  to  determine  whether  the  covenants 
in  a  given  case  are  dependent  or  independent,  is 
the  intention  of  the  parties,  as  collected  from  the 
entire  instrument,  (o) 

(n)  Ranger  v.  The  Great  Western  Railway  Company,  3  R. 
Cas.  298. 

(o)  M'Intosh  V.  Midland  Counties  Railway  Company,  23  Law 
J.,  Exchequer,  338.  The  action  was  founded  on  two  deeds  of 
covenant,  by  the  first  of  which,  after  various  recitals,  it  was 
witnessed  that  in  consideration  of  the  sum  of  £258,629  10s.  6d. 
agreed  to  be  paid  by  the  defendants,  the  plaintiff  undertook 
to  complete  a  certain  railway  from  a  point  in  the  borough  of 
Leicester  to  its  junction  with  the  Birmingham  Railway  at 
Rugby.  By  a  second  indenture  of  covenant,  dated  23rd  March, 
1839,  after  reciting,  among  other  things,  that  the  defendants 
were  desirous  that  the  permanent  way  should  be  completed  on 


Rights  of  a  Railway  Comjiany.  141 

177.  2dly.  Of  certain  particular  stipulations  usually 
introduced  into  the  class  of  contracts  under  consider  a  - 

or  before  the  1st  of  June,  1840,  so  that  the  railway  might  be 
opened  for  the  use  of  the  public  on  that  day,  and  that  the  plaintiff 
had  agreed  to  expedite  the  last  mentioned  work,  and  also  to  lay 
and  complete  the  permanent  line  of  railway,  so  that  the  whole 
line  of  railway  might  be  opened  to  the  public  on  the  1st  of  June, 
1840  ;  and  also  to  maintain  and  keep  in  repair  such  permanent 
line  of  railway  for  such  time  as  therein  mentioned,  in  considera- 
tion of  the  defendants  paying  hira  the  further  sum  of  £15,000  as 
a  further  consideration  for  the  work  in  the  first  contract,  and 
for  such  expedition  and  completing  the  same  as  aforesaid,  it  was 
witnessed  that  in  pursuance  of  that  agreement,  the  defendant 
undertook  that  he,  being  allowed  to  make  such  further  side  cut- 
tings and  spoil  banks,  and  being  found  and  provided  with 
such  rails,  chairs,  blocks,  sleepers,  and  spikes  for  temporary 
and  permanent  use,  as  therein  after  mentioned,  should  and  would 
on  or  before  the  1st  June,  1840,  well  and  substantially,  and 
in  a  good  and  workmanlike  manner,  make  and  complete  in  all 
things  the  said  portion  of  the  said  railway  in  the  original  contract 
contracted  and  agreed  to  be  made  by  him.  The  declaration  then 
specified  how  the  railway  was  to  be  completed  on  or  before  the  1st 
of  June,  and  then  went  on  to  set  forth  certain  covenants  and  agree- 
ments by  the  company  with  the  plaintiff,  that  they  would  supply 
the  different  articles,  the  rails,  spikes,  chairs  and  other  materials 
on  given  days  and  in  given  proportions  ;  and  then  came  a  proviso 
contained  in  the  second  indenture  to  the  following  effect  :  That  in 
case  the  defendant  should  not  complete  the  whole  of  the  railway 
and  works  on  or  before  the  1st  of  June,  1840,  so  as  that  the  said 
railway  might  be  capable  of  being  opened  by  the  said  company 
for  the  use  of  the  public  on  that  day,  the  defendant  should,  on 
demand,  pay  to  the  said  company  the  sum  of  £300  for  the  1st  of 
June,  and  the  like  sum  for  every  succeeding  day,  Sundays  only 
excepted,  until  the  whole  of  the  said  railway  should  have  been 
completed  and  delivered  over  to  the  said  company  capable  of 
being  opened  by  them.  It  was  proved  that  the  plaintiff  did  not 
finish  the  railway  until  twenty-four  days  after  the  1st  of  June, 
but  that  the  defendants  had  not  furniahed  him  with  all  the  rails, 


142       Com'pany  as  constituted  under  the  Act, 

t'lon.  The  stipulations  alluded  to  are  certain  ones 
intended  to  secure  to  the  company  the  necessary 
authority  and  control  over  the  contractor.  They 
may  be  classed  under  two  heads  :  1st.  Such  as 
constitute  the  company's  own  agent  judge  of  the 
quality  or  quantity  of  all  works  done  under  the 
contract  ;(p)  and  2ndly.  Stipulations  for  penalties. 
First,  then,  as  to  the  validity  of  the  former  kind  of 
stipulations ;  and  second,  as  to  their  general  effect 
and  operation. 

178.  (1.)  Validity  of  former  class  of  stipidations. 
Stipulations  of  the  above  kind,  by  which  a  certain 
degree  of  power  or  authority  over  the  contractor 
is  given  to  the  engineer,  cannot  be  regarded  as 
fraudulent  or  void  on  any  general  principles  of  law. 
The  safety  of  the  public  imperatively  requires  that 
railways  should  be  properly  constructed,  and  for 
this  there  can  be  no  security  without  they  are  con- 
structed under  the  superintendence  and  according 
to  the  judgment  of  some  scientific  person  such  as 
the  engineer  of  a  railway  company  may  fairly  be 
expected  to  be.  {q)  Assuming  such  stipulations  to 
be  in  themselves  valid,  the  additional  fact  of  the 
engineer  being  a  shareholder  in  the  company  cannot, 
it  seems,  be  taken  to  make  them  invalid,  it  being 

chairs,  &c.  The  fair  construction  of  the  second  indenture  was 
held  to  be  that  the  covenants  were  independent,  and  that  the 
furnishing  of  the  rails,  chairs,  &c.,  by  the  company  was  not  a 
condition  precedent  to  their  right  to  deduct  the  stipulated  sum. 

(p)  For  an  instance  of  such  a  stipulation,  see  Ranger  v.  The 
Great  Western  Railway  Company,  1  R.  Cas.  1  ;  S.C.3  R.Cas. 
298. 

(^)  Ranger  v.  The  Great  Western  Railway  Company.  3  R. 
Cas.  298,  judgment  of  Vice-Chancellor. 


Rights  of  a  Railway  Company.  143 

matter  of  general  notoriety  that  the  officers  of  bodies 
like  railway  companies  are  shareholders,  (r) 

179.  (2.)  As  to  the  effect  of  the  stipulations  in 
question.  As  far  as  regards  the  quality  of  the  work, 
the  authority  that  such  a  clause  confers  on  the  en- 
gineer, &c.  of  the  company  is,  as  it  seems,  complete 
and  absolute  ;  in  every  question  therefore  whether 
the  work  has  been  properly  done  or  not,  the  con- 
tractor is  bound  by  the  opinion  of  the  engineer,  (r) 
But  it  is  otherwise  where  the  engineer  is  constituted 
the  judge  not  simply  of  the  quality  of  the  work, 
but  of  what  is  dry  matter  of  measurement  and 
calculation  ;  as  for  instance,  what  quantity  of  work 
has  been  done,  and  what  payments  ouglit  to  have 
been  made  for  it.  In  such  a  case,  if  there  are 
reasonable  grounds  for  so  doing,  it  is  open  to  the 
contractor  to  question  the  correctness  of  the  mea- 
surements and  calculations  made  by  the  engineer,  (r) 

180.  2ndly.  Of  stipulations  for  penalties;  and 
herein  1st,  of  the  validity  ;  2nd,  of  the  general  effect 
and  operation  of  such  stipulations. 

(1.)  The  general  validity  of  such  stipulations  can- 
not it  seems  be  impugned  ;  and  therefore,  in  the  ab- 
sence at  least  of  fraud,  they  must  be  taken  to  be 
binding  on  the  contractor.  No  relief  consequently 
can  be  had  against  such  stipulations  where  the  cir- 
cumstances of  the  case  show  the  company  to  have 
enforced  them,  not  from  any  improper  motives,  but 
solely  as  a  necessary  matter  of  self  defence  and  pre- 
caution against  those  defaults  of  the  contractor, 
which  the  stipulations  in  question  were  intended  to 
meet ;  such,  for  instance,  as  increasing  slowness  and 

(')•)  Ranger  v.  The  Great  Western  Railway  Company,  3  Rail. 
Cas.  321,  judgment  of  Vice-Chancellor. 


144        Company  as  constituted  under  the  Act. 

delay,  neglect,   disobedience  of  the  just  orders  of 
the  company's  engineer,  and  the  like,  (s) 

181.  Where  a  written  contract  embodies  stipula- 
tions of  the  above  nature,  and  it  is  agreed  that  the 
provisions  of  such  contract  shall,  in  all  respects,  as 
far  as  they  are  applicable,  extend  to  an  unwritten 
contract,  the  stipulations  in  question  must,  it  seems, 
be  taken  to  be  imported  into  and  form  part  of  the 
unwritten  contract,  (s) 

182.  By  the  stipulations  in  question  the  company 
in  general  endeavour  to  protect  themselves  not 
merely  against  the  delays,  &;c.  and  other  personal 
defaults  of  the  contractor,  but  likewise  against  the 
chances  of  h\s  failure  or  becoming  embarrassed  in  his 
circumstances.  How  far  accordingly  provisions  of 
this  kind  can  be  so  framed  as  to  afford  to  a  railway 
company  the  desired  protection,  is  a  question  that 
must  necessarily  be  determined.  A  provision  by 
which  the  property  should  be  made  to  pass  to  the 
company  at  once,  in  case  of  the  contractor's  insol- 
vency or  bankruptcy,  would,  to  say  the  least  of  it, 
be  open  to  great  question,  as  militating  against  the 
policy  of  the  bankrupt  and  insolvent  acts.  (0  If,  to 
avoid  this  objection,  the  clause  is  framed  so  as  to 
make  the  property's  vesting  in  the  company  to  de- 
pend not  simply  on  the  bankruptcy  or  insolvency  of 
the  contractor,  but  on  an  election  to  be  made  by  the 
company  after  default  by  the  contractor  in  neglect- 
ing to  proceed  with  the  works  notwithstanding  due 

(s)  Ranger  v.  The  Great  Western  Railway  Company, 3  R. 
Cas.  298. 

(t)  See  judgment  of  Lord  Denman,  C.  J.  in  Rmtch  v.  The 
Great  Western  Railway  Ccmpanv,  2  Railway  Cas.  505  ;  .S.  C. 
1  A.  &  E.,  N.  S.  51  J  4  Per.  &  D.  686. 


Rights  of  a  Railway  Company.  145 

notice  to  that  effect ;  this  difficulty  is  let  in,  (setting 
aside  all  question  as  to  the  legal  validity  of  such 
clauses  in  their  first  formation)  viz.  that  before  the 
notice  is  given,  or  whilst  it  is  still  running,  and,  con- 
sequently, before  the  forfeiture,  if  it  may  be  so  called, 
has  accrued,  the  contractor  may  become  bankrupt, 
and  then  the  plant,  materials,  &c.  intended  to  be  for- 
feited cease  to  be  the  bankrupt's  by  the  title  of  the 
assignees    intervening  ;    an  hypothesis  upon  which 
the  clauses  in  question  must  clearly  become  inope- 
rative,   the  subject   matter   of  forfeiture   being  re- 
moved, (m)     The  objection  however  on  the  score  of 
the  bankruptcy  or  insolvency  laws  may  be  avoided, 
if,  instead  of  an  absolute  forfeiture  and  vesting  of 
the  property  in  tliemselves,  the  company  are  content 
to  stipulate  for  a  simple  lien  upon,  or  right  to  use 
the  tools,  materials,  &c.  of  the  contractor,  and  this 
without  any  professed  reference  to  the  event  of  bank- 
ruptcy, &c.     Such  a  stipulation  bears  nothing  un- 
iawfui  on  the  face  of  it,  and  indeed  is  one  into  which 
the  contractor  may  lawfidly  enter,  assuming,  that  is 
to  say,  his  solvency,  and  that  bankruptcy  is  not  in 
his  contemplation,  and  that  he  is  the  owner  of  the 
chattels  to  be  affected  by  the  deed,  (.x) 

Supposing  therefore  the  contractor  subsequently 
becomes  bankrupt,  still  the  assignees  take  the  pro- 
perty subject  to  the  above  stipulation,  and  cannot 
consequently  either  reclaim  property  which  the  com- 
pany has   already  applied  to  the  purposes  contem- 

(ii)  llinich.  V.  The  Great  Weitern  Railway  Company,  ubi 
supra. 

( i)  flawihoi-n  v.  Tlie  Newcastle-npon-Tyne  and  North  Shields 
B.(iilway  Company,  2  Railway  Cas.  299;  .5'.  C.  3  A.  .Sc  E. 
A.S.  734,  n.(a). 

H 


1 46       Company  as  constituted  under  the  Act. 

plated  by  such  stipulation,  nor  resist  any  such  ap- 
olication  in  future,  {y) 

183.  It  has  indeed  been  attempted  to  impugn  the 
validity  even  of  clauses  framed  in  the  manner  last 
suggested  on  another  ground  ;  viz.  that  they  tend 
to  make  the  contractor  the  reputed  owner  of  the 
goods  in  question.  This  objection  can  of  course 
only  hit  the  case  where  at  the  time  of  the  bank- 
ruptcy no  steps  have  been  taken  by  the  company 
to  enforce  their  rights  under  the  stipulation  in 
question.  x\nd  even  in  this  case  the  answer  is  ob- 
vious, viz.  that  such  stipulation  per  se  conveys  no 
property  to  the  company,  and  that  therefore  the 
contractor  and  not  the  company  must  be  regarded 
as  the  true  owner,  (z/) 

184.  (2)  Of  the  import  of  such  stipulations.  This, 
from  the  very  nature  of  such  stipulations,  which  are 
clearly  matter  of  express  bargain,  must  depend  on 
the  particular  terms  in  which  they  are  couched.  For 
instance,  the  forfeiture  may  be  made  to  extend  to 
all  the  materials,  implements,  &c.  used  about  the. 
works,  or  it  may  be  confined  to  those  within  certain 
local  limits,  (z)  A  railway  company  entered  into  a 
contract  with  certain  builders  for  the  construction  of 
a  bridge.  It  was  part  of  the  terms  of  the  contract 
that  if  in  the  opinion  of  the  company's  architect  the 
contractors  did  not  proceed  with  sufficient  speed,  the 
company  might,  on  giving  seven  days'  notice  of  their 
intention,  employ  additional  workmen,  and  use  all  the 
implements,  materials,  &c.  used  about  the  works  by 

(y)  See  ante,  p.  145,  n.(z). 

(z)  Rouch  V.  The  Great  Western  Railway  Company,  ubi 
supra ;  Hawthorn  v.  The  Newcastle-upoii'Tyne  and  North  Shields 
Railway  Company,  ubi  supra. 


Rights  of  a  Railway  Company.  147 

the  contractors.  It  was  held  that  under  this  stipu- 
lation, supposing  the  contemplated  contingency 
should  arise,  and  the  seven  days'  notice  be  given, 
the  company  would  clearly  be  at  liberty  to  make 
use  of  all  the  implements  and  materials  then  in  use 
bv  the  contractors  in  and  about  the  works,  whether 
they  continued  to  be  on  this  or  that  precise  spot. 
The  same  contract  further  provided  that  the  com- 
pany should  have  a  lien  on  such  implements,  mate- 
rials, &c.  as  might  for  the  time  being  be  in  or  upon 
the  lands  and  grounds  whereon  the  bridge  was  to 
be  built.  It  was  held  that  under  the  above  stipula- 
tions the  company  acquired  a  lien  in  the  nature  of  a 
shifting  lien,  attaching  on  materials,  &c.  as  they 
were  brought  upon  the  ground,  and  lost  if  they  were 
removed  elsewhere  not  wrongfully,  though  the  loss 
of  the  lien  on  the  articles  so  removed  did  not  affect 
it  as  to  what  remained,  or  which  from  time  to  time 
might  be  brought  on ;  and  that  as  to  the  places 
where  the  lien  would  attach,  it  was  not  to  be  limited 
literally  to  the  spot  forming  the  site  of  the  intended 
bridge,  but  was  to  be  taken  to  extend  to  all  places 
in  wiiich  the  building  of  tlie  bridge  was  in  the 
popular  sense  carrying  on,  if  such  place  v.'as  in  the 
possession  of  the  company  ;  that  the  lien  accordingly 
attaclied  on  materials,  &c.  deposited  on  the  line  of 
the  railway,  and  also  on  land  adjoining  the  railway 
and  in  the  possession  of  the  company,  but  not  on 
materials,  &c.  lying  on  a  temporary  railway  made 
by  the  builders  over  lands  not  belonging  to  the  com- 
pany for  the  convenience  of  conveying  materials, 
nor  on  the  materials  of  the  temporary  railway  itself, 
nor  again  on  a  crane  erected  at  the  extremity  of 
such  temporary  railway,  though  the  latter  classes  of 
H  2 


148       Company  as  constituted  under  the  Act. 

articles  the  company,  at  the  expiration  of  the  notice 
above  alluded  to,  had  a  right  to  retain  and  use  about 
the  work,  (a) 


Sub-Sect.  4. — Of  the  Duties  and   Obligations  of  a 
Railway  Company. 

18 J.  It  is  proposed  in  the  present  section  to  treat 
of  the  duties  and  obligations  of  railway  companies. 
These  may  be  considered  under  two  heads  ;  first, 
such  as  are  immediately  cast  upon  them  by  their 
statute  of  incorporation,  whether  in  express  terms 
or  by  implication ;  and  secondly,  such  as  mediately 
flow  from  the  same  source,  being  the  result  of  the 
position  in  which  the  company  are  placed  by  acting 
upon  the  powers  of  their  statute. 

186. 1st.  Of  Duties  immediately  imposed  by  Sta- 
tute. This  species  of  duties  admits  of  a  threefold 
division,  according  to  the  character  of  the  parties  to 
whom  they  are  due  ;  first,  duties  owing  to  the  public  ; 
secondly,  duties  owing  to  that  portion  of  the  public,  who 
are  the  owners  of  the  adjoining  property ;  thirdly, 
duties  owing  at  once  to  the  public  and  to  the  individual 
shareholders.  First,  then,  as  to  the  first  class. 
Acts  of  parliament,  which,  like  railway  or  canal 
acts,  confer  large  and  extensive  powers  for  the 
execution  of  public  works,  cannot  be  considered  as 
entailing  no  duties  on  those  who  obtain  them,  as 
offering,  in  short,  a  mere  boon,  which  the  projected 
company  may  accept  or  reject,  or  partially  accept 
and  partially  reject,  at  their  sole  will  and  pleasure. 

(a)  Hawthornv.  The  Newcastle-upon-Tyne  and  North  Shields 
Raihvay  Company,  ubi  supra. 


Duties  and  Obligations  of  a  Railway  Company.  1 49 

Such  acts,  on  the  contrary,  as  we  have  ah-eady  had 
occasion  to  observe,  are  regarded  in  the  light  of 
contracts  made  by  the  legislature  on  behalf  of  every 
person  interested  in  any  thing  to  be  done  under 
them.  Those  consequently  who  come  to  parliament 
to  obtain  them  thei-eby  in  effect  undertake  that  they 
shall  do  and  submit  to  whatever  the  legislature  em- 
powers and  compels  them  to  do  ;  (6)  and  this  as 
well  with  reference  to  the  interests  of  the  public  as 
to  that  of  individuals.  To  apply  these  principles 
more  immediately  to  railway  companies,  inasmuch 
as  what  the  legislature  usually  contemplates  in  in- 
corporating a  company  of  this  nature  is  the  making 
and  maintaining  of  a  line  of  railway  between  certain 
given  termini ;  the  duties  in  general  imposed  by 
the  law  on  such  companies  as  incident  to  their  crea- 
tion can  be  no  less  than  that  of  making  and  main- 
taining the  railway  in  the  line  contemplated  by  the 
legislature.  The  circumstances  under  which  such 
acts  are  obtained  greatly  tend  to  corroborate  this 
view.  Certain  individuals  go  to  parliament,  and 
apply  for  an  act  to  make  a  railway.  To  induce  the 
legislature  to  accede  to  their  application,  and  to 
grant  them  the  necessary  powers,  they  represent 
themselves  to  be  capable  of  performing  certain 
works,  and  undertake  to  do  so.  It  is  upon  the  faith 
of  such  representation  and  undertaking  that  they 
obtain  their  act,  and  the  great  powers  of  occupying 
land  and  raising  money  which  it  bestows.  Thev 
cannot  after  this  be  permitted  to  allege,  by  way  of 

(6)  Blakemore  v.  The  Glamorganshire  Canal  Navigation,  1 
M.  &  K.  162;  judgment  of  Lord  Denman,  C.  J.,  in  Reg.v, 
Eastern  Counties  Railway  Company,  1  R.  Cas.  509  ;  S.  C.  2  R. 
Cas.  260  ;  10  A.  &  E.  531 ;  2  Per.  &  D.  648. 


150       Company  as  constituted  under  the  Act. 

excuse  for  the  non-performance  of  what  is  contem- 
plated by  the  act,  the  difficulty  or  impossibility  at- 
tending the  execution  according  to  the  prescribed 
terms ;  (since  such  difficulties,  be  they  more  or  less, 
should  have  been  duly  estimated  by  the  undertakers 
before  they  pledged  themselves  to  the  execution  for 
the  sake  of  obtaining  their  act)  ;  or  a  regard  to  the 
pecuniary  interests  of  the  company,  the  majority 
being  satisfied  with  the  dividends  already  accruing, 
and  unwilling  to  risk  a  further  expenditure  ;  neither 
can  they  claim  to  exercise  an  unlimited  option  over 
the  works,  abandoning  one  part  and  executing  ano- 
ther at  their  will  and  pleasure.  By  their  acceptance 
at  the  hands  of  the  legislature  of  the  very  large  and 
extensive  powers  ordinarily  conferred  by  a  railway 
act,  for  what  cannot  but  be  regarded  as  public  pur- 
poses, they  become  clothed  with  the  character  of 
public  trustees  ;  and  as  such,  in  case  of  any  neglect 
or  failure  to  exercise  such  powers  in  compliance 
with  such  purposes,  they  may  be  compelled  to  do  so 
within  reasonable  limits  by  a  court  of  justice,  (c) 
Accordingly,  where  the  conduct  of  a  company  is 
such  as  evinces  that  they  have  no  bona  fide  intention 
of  completing  their  works  according  to  the  requisites 
of  their  act,  a  mandamus,  it  seems,  will  lie  to  them 
to  enforce  their  taking  the  necessary  steps  for  that 
purpose.  As  for  instance,  if  their  works  appear  to 
be  in  a  great  state  of  forwardness  on  one  part  of  the 
line,  while  nothing  is  doing  on  another,  even  as 
respects  the  preliminary  measure  of  purchasing  the 
necessary  land  {d).    In  order,  however,  to  succeed  in 

(c)  Judgment  of  Lord   Denman,  C.  J.,  in  Reg.  v.  EasUrn 
Counties  Railway  Company,  ubi  supra. 

(d)  Reg.  V.  The  Eastern  Counties  Railway  Company,  ubi  supra. 


Duties  and  Obligations  of  a  Railway  Company.   151 

an  application  for  a  mandamus,  it  is  not  enough  for 
the  prosecutors  to  state  facts,  which,  though  they 
raise  a  suspicion,  yet  fall  short  of  proof  that  the  com- 
pany has  abandoned  all  intention  of  completing  their 
line  according  to  the  meaning  of  the  act.  As  for 
instance,  where  the  gravamen  of  the  complaint  in 
effect  amounted  simply  to  this,  that  the  company 
had  refused  to  purchase  lands  at  the  time  a  par- 
ticular shareholder  had  requested  them  to  do  so.  (e) 

187.  Although  a  railway  company  cannot  in  ge- 
neral excuse  itself  from  the  performance  of  the 
works  contemplated  by  its  act  of  incorporation,  on 
the  score  of  the  insufficiency  of  its  funds,  or  on 
account  of  the  difficulty  or  impossibility  attending 
the  execution  of  the  design,  still  if  it  appeared  that 
the  company  was  restrained  from  proceeding  by 
the  injunction  of  a  court  of  equity,  it  is  conceived 
that  this  would  be  held  by  a  court  of  law  a  suffi- 
cient answer  to  any  application  to  compel  the  fur- 
ther prosecution  of  its  works. 

188.  A  further  branch  of  the  same  class  of  duties 
is  that  of  maintaining  the  railway.  By  this  must 
be  understood,  if  not  the  absolutely  (/)  repairing  of 

In  Reg.  V.  Great  'North  of  England  Railway  Company  a  rule 
nisi  was  obtained  for  a  mandamus  to  the  company  to  compel  them 
to  complete  their  line,  they  having  done  little  or  nothing  to  carry 
out  a  particular  portion  of  it;  but  the  applicant  having  subse- 
quently obtained  his  object  under  an  act  of  parliament,  no  further 
proceedings  were  taken  in  the  case.  Great  difficulty,  it  may  be 
remarked,  was  felt  in  the  case,  as  to  whether  the  applicant  was 
entitled  to  a  mandamus  at  all,  he  having  no  property  on  the 
line  of  the  railway,  but  only  in  its  vicinity.  —  November 
20th,  1841. 

(e)  Ibid. 

{J)  In  Reg.  V.  Bristol  Dock  Company,  2  A.  &  E.  N.  S.  64, 


152        Company  as  constituted  under  the  Act. 

the  line  of  railway,  at  any  rale  the  keeping  it  in  such 
a  state  as  to  all  essentials,  that  the  public  may  have 
the  use  of  it  as  a  railway.  Any  positive  act  accord- 
ingly on  the  part  of  the  company,  which  should 
tend  directly  to  the  destruction  of  the  railway,  and 
the  depriving  the  public  of  the  use  of  it  as  such, 
would  clearly  be  an  infringement  of  this  duty.  Ac- 
cordingly, where  a  railway  company  took  up  a  part 
of  the  railway,  a  mandamus  was  issued  to  compel 
them  to  reinstate  and  lay  it  down  again,  (rf) 

189.  Another  and  closely  analogous  branch  of 
duty,  is  that  which  relates  to  the  keeping  the  line  of 
railnay  free  from  impediments.  The  company  con- 
struct the  railway  for  their  own  profit,  and  open  it 
to  the  public  upon  the  payment  of  tolls.  The 
common  law  in  such  a  case  imposes  a  duty  on  the 
company,  not  perhaps  absolutely  to  free  it  from 
obstruction,  but  to  take  reasonable  care  that  all  who 
shall  choose  to  use  it  may  do  so  without  danger  to 
their  lives  or  property,  (e) 

190.  The  second  class  of  the  above  duties  are 
those  which  are  imposed  by  the  legislature  in  favour 
of  the  proprietors  of  the  adjoining  lands.  Such  is  the 
duty  of  fencing  off  the  railway  from  the  adjoining 
lands,  of  making  (/)  proper  communications  across 

the  court  held  the  dock  company  liable  to  repair  their  works, 
the  statute  incorporating  the  company  expressly  reqtiiring  the 
company  to  make  and  maintain  the  same. 

(rf )  Hex  V.  The  Severn  and  Wye  Railway  Company,  2  B.  & 
Aid.  646. 

(e)  See  judgment  of  Tindal,  C.  J.,  in  The  Company  of  Pro- 
prietors of  the  Lancaster  Canal  Navigation  v.  Parnahy  and 
others,  1  Railway  Cas.  712  ;  S.  C.  11  A.  &  E.  223  ;  3  Per.  & 
D.  162. 

(/)  As  to  the  making  of  proper  communications,  see  ante,  p. 


Duties  and  Ohligations  of  a  Railway  Company.   153 

the  railway  for  the  accommodation  of  such  lands, 
and  making  and  maintaining  adequate  drains  to 
carry  off  the  water  from  the  same,  and  the  like. 

191.  The  third  class  of  the  above  duties  are  those 
which  the  corporate  body  owe  at  once  to  the  public  and 
to  the  individual  shareholders.  Such  is  the  duty  of 
doing  nothing  in  their  corporate  capacity  but  what 
they  are  authorized  to  do  by  the  legislature ;  but 
in  all  things  adhering  faithfully  to  the  objects  of 
their  incorporation.  Should  a  railway  company 
therefore  attempt  to  employ  their  corporate  powers, 
funds,  credit,  &c.  for  the  accomplishment  of  pur- 
poses not  within  the  scope  of  their  institution,  this 
would  be  such  a  clear  violation  of  duty  on  their 
part,  as  to  subject  them  to  be  restrained  by  a 
court  of  equity ,'(g-)  even  on  the  application  of  a 
single  shareholder.  But  although  a  court  of  equity 
would  restrain  a  railway  company  from  thus  acting 
contrary  to  the  laws  of  their  existing  constitution, 
yet  it  would  not,  it  seems,  interfere  to  prevent  such 
a  body  from  applying  in  their  coporate  capacity  to 
parliament,  and  from  using  their  corporate  seal  and 
resources  to  obtain  the  sanction  of  the  legislature 
to  the  remodelling  of  their  constitution,  or  to  a  ma- 
terial alteration  and  extension  of  their  objects  and 
powers,  the  right  to  take  proceedings  in  parliament 
in  the  way  suggested  being  incident  to  a  corporate 
body  such  as  that  under  consideration.  (/«) 

121,etseq.,and  post,  Cap.  6.  As  to  provisions  of  Railways  Clauses 
Consolidation  Act,  8  Vict.  c.  20,  on  the  same  point,  see  act,  s,  68 
to  75,  post,  App. 

(g)   Ware  v.  The  Grand  Junction  Water  Works  Company,  2 
Russ.  &  M.  483. 

(h)  Ibid. 

H  5 


154       Company  as  constituted  under  the  Act. 

192.  Under  this  same  head  may  likewise  be 
reckoned  the  duty  of  making  calls  and  likewise  of 
enforcing  payment  of  calls  already  made,  when  the 
state  of  the  company's  funds  is  such  as  requires  the 
exercise  of  the  power  with  which  the  legislature  has 
entrusted  them  for  that  purpose. (i) 

1 93.  Next,  Of  the  Second  Class  of  Duties,  viz. 
such  as  are  the  result  not  so  much  of  the  company's 
act  of  incorporation,  as  of  the  new  relations  incidental 
thereto,  viz.  their  duties  as  owners  of  the  property, 
whether  real  or  personal,  which  they  are  compelled,  &c. 
to  purchase  for  the  purposes  of  the  railway.  Viewed 
then  as  owners  of  property,  a  railway  company  are 
liable  to  the  like  obligations  as  any  ordinary  pro- 
prietor, saving  of  course  so  far  as  is  otherwise  pro- 
vided for  by  their  statute  of  incorporation.  They 
are  bound  therefore  to  abstain  from  the  doing  any 
thing  on,  or  making  any  use  of,  their  own  land, 
which  may  prejudice  their  neighbour.  And  the 
same  rule  applies  in  regard  of  their  employment  of 
things  moveable. 

Sub-Sect.   5. — Of  the    Burthens  of  a  Railway 
Company,  (k) 

194.  A  railway  company,  viewed  as  owners  or 
occupiers  of  the  line  ot  railway,  ai'e  liable  to  all 
rates,  charges  and  other  burthens  ordinarily  inci- 
dental to  the  ownership  or  occupation  of  realty,  so 
far,  that  is  to  say,  as  is  not  otherwise  provided  tor 

(i)  See  Reg.  v.  Victoria  Park  Company,  1  A.  &  E.  N.  S.288. 

(/()  As  to  liability  of  companies  under  Lands  Clauses  Con- 
solidation Act,  8  Vict.  c.  18,  to  make  good  land  tax  and  poor's 
rate,  until  works  completed  and  assessed  thereto,  see  act,  s.  133, 
post,  App. 


Of  the  Burthens  of  a  Railway  Company.       155 

by  their  act  of  incorporation.  A  railway  company, 
accordingly,  in  the  occupation  of  their  own  line  of 
railway,  are  liable  to  be  rated  for  the  same  to  the 
relief  of  the  poor.  This  renders  necessary  an  in- 
quiry into  the  principle  of  rating  railways,  and  herein, 
first,  of  the  general  principle  ;  secondly,  of  the  varia- 
tions engrafted  on  it  by  particular  statutes.  The 
former  question  includes  two  points  : — 

First,  what  is  to  be  deemed  subject-matter  of 
rate,  and  to  be  included  accordingly  in  the  estimate 
of  rateable  value  ;  and,  secondly,  upon  what  principle 
the  rate  is  to  be  apportioned  among  the  different 
portions  of  the  line  lying  in  different  parishes. 

195.  General  Principle  of  Ratiis'g. — First. 
What  to  he  brought  into  rate.  A  railway  company  then 
is  rateable  upon  the  net  annual  value  of  the  railway, 
that  is  to  say,  at  such  an  amount  as  a  tenant  from 
year  to  year  might  fairly  be  expected  to  pay  for  the 
railway  by  way  of  net  rent,  assuming  him  to  have 
the  same  power  of  using  the  railway,  and  the  like 
privileges  and  advantages  as  the  company,  (l) 

Supposing,  therefore,  that  the  land  and  buildings 
of  the  company  become  themselvesmore  valuable  and 
capable  of  commanding  a  higher  rent  in  consequence 
of  the  facilitj'  afforded  by  the  occupation  of  them  to 
the  carrying  on  of  a  lucrative  trade  and  earning  the 
profits  on  the  fares,  in  whatever  proportion  this  is 
the  case,  the  rate  ought  to  be  raised  accordingly,  (l) 
Hence  it  would  seem  a  proper  mode  for  calculating 

(0  Beg.v.  Londim  ai)d  Snuth  Western  Railway  Company,  2 
R.  Cas.  629  ;  S.  C.  I  A.  &  E.  N.  S.  558  ;  2  G.  &  D.  49  ; 
R'g.  V.  Grand  Junction  Railway  Company,  22  Law  J.,  Mag. 
Cas.  94:  S.C.  4  A.  &  E.  N.  S.  18;  4  Railw.  Cas.  1. 


156       Company  as  constituted  under  the  Act. 

the  rateable  value  of  railway  property,  first  to  take 
the  gross  receipts  of  the  company,  and  then  to  deduct 
therefrom  a  per  centage  (the  amount  of  which  it 
belongs  to  the  sessions  to  determine),  first,  for  the 
interest  of  capital  actually  invested  by  the  company 
in  moveable  carrying  stock  ;  secondly,  for  tenants' 
profits  and  the  fair  profits  of  trade  ;  thirdly,  for  the 
depreciation  of  stock  beyond  ordinary  annual  re- 
pairs, Arc;  fourthly,  for  the  annual  costs  of  conduct- 
ing the  business,  maintenance  of  way,  &c.  and  other 
disbursements  of  the  company  as  railway  owners 
and  carriers ;  and,  lastly,  a  mileage  for  the  renewal 
and  reproduction  of  those  portions  of  the  subject- 
matter  of  the  rate  which  are  of  a  perishable  nature, 
such  as  chairs,  sleepers,  &c.(;?j)  As  these  deduc- 
tions, taken  together,  seem  to  exhaust  whatever  is 
properly  referable  to  the  trade,  as  distinguished  from 
the  increased  value  which  that  trade  imparts  to  the 
land,  the  residue  may  fairly  be  taken  to  represent 
the  value  of  the  occupation,  which  as  we  have  seen 
constitutes  the  proper  subject  of  the  rate. 

196.  In  making  the  dbove  calculation,  no  allow- 
ance, it  is  to  be  observed,  has  been  made  for  good 
will,  neither  it  seems  can  any  such  allowance  be 
claimed,  (wi) 

197.  It  makes  no  difference  in  the  principle  on 
which  the  rate  is  to  be  imposed,  whether  the  com- 
pany is  in  the  exclusive  enjoyment  ol  the  line  of 
railway  and  has  a  monopoly  of  the  traffic  thereon, 
or  it  is  shared  in  by  others,  of  whom  some  simply 
make  use  of  the  railway  and  pay  the  tolls  imposed 

(m)  Reg.  V.  Grand  Junction  Railway  Company,  ubi  supra. 
Where  the  stations,  &c.,  are  rated  separately,  the  annual  value 
of  these  must  also  be  deducted.  See  also  Reg.  v.  Great  Western 
Railway  Company,  4  Railw.  Cas.  26,  and  post,  App. 


Of  the  Burthens  of  a  Railway  Company.      157 

by  the  company's  act  of  incorporation,  while  others 
in  addition  hire  of  the  company  steam  power  and 
make  use  of  its  landing  places,  &c.,  paying  an  ad- 
ditional compensation  for  the  same.(m)  In  both 
cases  the  inquiry  is  the  same  :  what  is  the  value  of 
the  occupation,  from  whatever  source  derived  ;  whe- 
ther, as  in  the  former  case,  simply  from  the  carriage 
of  goods  and  passengers;  or,  as  in  the  latter,  both 
from  that  source  and  also  in  addition  from  allowing 
others  to  carry  goods  and  passengers  along  the  line, 
Szc.  (n)  In  neither  case  can  the  profits  of  trade, 
as  such,  be  brought  into  the  rate  ;  but  if  the  ability 
to  carry  on,  or  to  permit  others  to  carry  on,  a  gainful 
trade  on  the  railway  adds  to  the  value  of  the  railway 
and  works,  that  value  cannot  be  excluded,  merely 
because  it  is  referable  to  the  trade.  (?2) 

198.  An  argument  adverse  to  this  view  of  the  rate- 
ability  of  railways  has  indeed  been  attempted  to  be 
drawn  from  the  clauses  usually  inserted  in  railway 
acts,  directing  under  severe  penalties  an  account  of 
tolls  to  be  kept  for  the  benefit  of  the  overseers  of 
the  poor ;  a  provision,  it  has  been  urged,  which  is 
utterly  without  an  object,  unless  the  tolls  alone  ai'e 
the  fund  with  which  the  overseers  have  to  do.  Un- 
questionably it  must  be  allowed  tliat  the  clauses  in 
question  evidence  an  intention  in  the  framers  of  the 
act  to  limit  the  rateability  of  railways  to  the  tolls 
only  ;  and  it  is  in  order  to  eflectuate  the  working  of 
this  mode  of  calculating  the  assessment  of  railway 
property  that  they  are  inserted.  But  still  there  is 
nothing  in  this  strong  enough  to  countervail  the  gene- 
ral principles  of  law  relative  to  the  rating  of  realty, 

(m)  See  ante,  p.  155,  n.  {I). 

(n)  Reg.  V.  Grand  Junction  Uailway  Compuny,  ubi  supra. 


158        Company  as  constituted  under  the  Act. 

or  to  prevent  their  application  to  the  rating  of  the 
property  of  a  railway  company  in  their  occupation  ; 
considering  more  especially  the  nature  of  a  railway 
act,  which  in  questions  of  intention  must  not  be  dealt 
with  exactly  as  if  it  were  a  public  general  act,  but 
rather  as  a  mode  of  carrying  into  effect  a  bargain 
between  certain  individuals  and  the  public,  (o) 

199.  Secondly. — As  to  the  principle  on  which  the 
rate  is  to  he  distributed  among  the  different  portions 
of  the  line  lying  in  different  parishes.  As  a  general 
rule  then  the  subject-matter  of  the  rate  in  any  par- 
ticular parish  is  the  beneficial  occupation  of  the  land 
there,  and  there  cannot  be  drawn  into  the  rate  the 
value  of  the  occupation  of  buildings,  &c.  elsewhere  ; 
still  as  it  is  on  the  value  in  the  parish,  however  oc- 
casioned, that  the  rate  is  to  be  imposed,  it  cannot 
be  allowed  to  strike  off  any  portion  of  such  value, 
because  it  would  not  have  existed  but  for  the  occu- 
pation of  buildings,  &c.  elsewhere  and  in  another 
parish ;  it  exists  and  in  the  parish,  and  therefore 
cannot  escape  the  rate  there,  [p) 

200.  The  value  of  the  occuj)ation  in  the  particular 
parish  being  the  proper  subject  of  the  rate  in  such 
parish,  it  follows  that,  as  a  general  rule,  the  proper 
mode  of  apportioning  the  rate  among  the  various 
parishes  along  the  line  of  railway  is  not  by  a  mileage 
division,  which  assumes  the  profits  to  arise  equally 
throughout  the  whole  line,  but  according  to  the  actual 
earnings  in  each  parish,  (y)     But  if  in  a  particular 

(o)  Reg.  V.  The  London  and  South  Western  Railway  Company, 
ubi  supra. 

(p)  Judgment  of  Lord  Denman,  C.  J.,  in  Reg.  v.  The  London 
and  South   IVeitern  Railway  Companij,  ubi  supra. 

(v)  ^^^S'  ^'  London  and  South  Western  Railway  Company, 
ubi  supra. 


Of  the  Burthens  of  a  Raihvay  Company.       159 

case  both  parties  choose  to  agree  on  adopting  the 
former  principle,  it  is  of  course  open  to  them  to  do 
so.  (;•) 

201.  Secondly.  Of  Variations  in  Principle  of 
Rating  by  Statute.  Instead  of  leaving  a  railway 
under  the  operation  of  the  general  law,  the  legislature 
may  provide  that  it  shall  be  rated  upon  a  principle  of 
its  own  ;  as,  for  instance,  if  an  act  were  to  direct  that 
the  tolls  should  not  be  subject  to  rates,  but  that  the 
lands,  buildings,  &c.  of  the  company  should  be  rated 
in  the  same  proportion  as  the  adjacent  lands,  &c., 
were  for  the  time  being,  and  as  the  lands  and 
buildings  of  the  company  would  have  been  rateable 
in  case  they  had  continued  in  their  former  state,  and 
not  been  used  for  the  purposes  of  the  undertaking. 
Under  such  a  provision  the  property  of  the  com- 
pany ought,  it  seems,  to  be  rated  at  the  value  which 
the  adjacent  lands,  &'c.,  bear  at  the  time  of  the  rate, 
the  intention  of  the  legislature  being  not  to  exclude 
all  improvement  in  value,  but  simply  the  additional 
value  arising  from  the  tolls,  c^c.  {s) 

202.  Tithe  Rent-charge.  In  like  manner  the 
company  are  liable  to  the  payment  of  all  tithe  rent- 
charges  charged  upon  lands  taken  for  the  purposes 
of  a  railway,  and  may  be  distrained  on  for  the  same 
when  they  are  suffered  to  fall  in  arrear.  [t) 

203.  Where  land  enjoys  an  exemption  from  cer- 
tain burdens  by  virtue  of  a  particular  statute,  whe- 
ther or  not  it  loses   that  exemption  by  being  con- 

('■)  ^^S'  v-  Grand  Junction  Railway  Company,  22  Law  Jour. 
Mag.  Ca.  94 ;  S.  C.4  A.&c  E.  N.  S.  18 ;  4  Railw.  Cas.  1. 

(s)  Reg.  V.  The  Mnnmnuthshire  Canal  Comiiani),  3  A.  &  E.  619. 

(t)  See  remedy  given  in  such  case  by  statute  7  &  8  Vict.  c. 
85,  sect.  22,  Appendix. 


160         Company  as  constituted  under  the  Act. 

verted  into  a  railway,  must  depend  on  the  nature 
and  purport  of  the  exemption ;  viz.  whether  it  is  a 
local  exemption  applying  to  the  land  itself,  or  whe- 
ther it  depends  on  the  land  retaining  a  particular 
character,  and  therefore  ceasing  when  the  land  loses 
that  character  by  being  applied  to  the  purposes  of  a 
railway. 

By  a  paving  act  all  hereditaments  within  a  pai- 
ticular  city  were  made  liable  to  rates,  except  a  mes- 
suage or  dwelling  house,  together  with  the  barns, 
stables,  outhouses  and  grounds  thei-eunto  belonging, 
situate,  &c.,  and  then  in  the  occupation  of  S.  T., 
called  B,  Farm.  A  piece  of  land  forming  a  portion 
of  those  grounds  having  been  taken  by  a  railway 
company,  and  a  railway  made  over  it,  it  was  held 
nevertheless  not  to  lose  its  exemption  from  rateabi- 
lity  by  thus  ceasing  to  be  occupied  for  farming  pur- 
poses, (it) 


Sub-Sect.  6. — Of  the  Liabilities  of  a  Raibvmj 
Company. 

I.  Of  Liabilities  on  Contracts. 
II.  Of  Liabilites  in  Tort. 

30L  I.  Of  Uabililies  on  contracts.  In  deter- 
mining the  liability  of  a  railway  company  upon  a 
contract,  there  are  three  points  to  be  considered, 
1st,  whether  the  contract  is  one  that  the  company 
is  competent  to  conclude ;  2nd,  whether  it  is  con- 
cluded in  such  a  manner  as  to  operate  as  the  con- 

(u)  Todd  V.  London  and  South    Western  Railway   Compniiy, 
8  Scott's  N.  R.  66 ;  S.  C.  7  M.  &  Gr.  366. 


Liabilities  of  a  Railway  Company.  161 

tract  of  the  company ;  3rd,  what  are  its  nature  and 
effects  ? 

The  first  point  having  been  ah-eady  fully  con- 
sidered in  a  former  part  of  the  work,  (a)  it  is 
proposed  at  once  to  pass  to  the  consideration  of  the 
second. 

205.  2ndly,  Thi-ough  what  organs,  and  with  what 
forms,  a  railway  company  must  in  general  act,  so  that 
what  it  does  may  operate  as  the  public  act  of  the 
company,  has  been  already  considered,  (i)  From  the 
principles  there  laid  down,  it  may  easily  be  deduced 
in  what  manner  a  contract  must  be  concluded,  to  be 
binding  on  the  company.  There  are,  however, 
certain  cases  which  may  perhaps  be  considered  as 
constituting  exceptions  to  the  above  rules,  and 
where  a  contract  may  still  be  enforced  against  a 
company,  though  not  concluded  under  the  common 
seal,  or  under  the  hands  of  the  requisite  number 
of  directors.  These  cases  in  general  rest  on  neces- 
sity, or  on  an  urgent  expediency  amounting  almost 
to  necessity  ;  as  for  instance,  wherever  to  hold  the 
rule  applicable  would  occasion  great  inconvenience, 
or  tend  to  defeat  the  object  for  which  the  corpora- 
tion is  created.  Hence  contracts  of  frequent  occur- 
rence, or  such  as  are  too  insignificant  to  be  worth 
the  trouble  of  affixing  the  common  seal,  &c.,  or 
necessary  to  the  very  existence  of  the  corporation, 
or  to  the  management  of  its  corporate  concerns,  or 
which  fall  within  the  very  purpose  and  scope  of  its 
incorporation,  may  perhaps  be  taken  to  constitute 
established  exceptions,  (c) 

(a)  See  ante,  pp.  81,  82. 

(b)  See  ante,  p.  70,  et  seq. 

(c)  See  ante,  p.  137,  n.  (g). 


162        Company  as  constituted  under  the  Act. 

206.  Although  in  the  first  instance  a  contract 
wants  any  of  the  requisites  above  mentioned,  and 
so  cannot  operate  as  the  contract  of  the  corporate 
body,  still  if  a  subsequent  recognition  and  adoption 
of  such  contract  on  the  part  of  the  corporate  body 
can  be  brought  home  to  them,  it  becomes  as  much 
binding  upon  them  as  if  it  had  been  originally  con- 
cluded by  them  in  all  due  form,  (c) 

207.  Upon  a  closely  analogous  principle,  a  con- 
tract made  by  the  projectors  of  a  company  before 
the  act  of  incorporation  has  been  held  binding  on 
the  incorporated  body,  where  the  latter  adopt  it  and 
take  the  benefit  of  the  consideration  on  which  it  is 
made,  {d)  For  although  the  company  and  the  pro- 
jectors cannot  be  identified,  still  it  is  clear  that  the 
company  are  the  successors  to,  and  in  the  posses- 
sion and  enjoyment  of,  all  that  the  projectors  had 
before.  Standing  then  in  the  place  of  the  pro- 
jectors, and  reaping  the  fruits  of  the  arrangements 
concluded  by  them,  they  cannot  claim  to  repudiate 
those  arrangements.  This  principle  has  been 
extensively  recognized  in  the  case  of  one  parti- 
cular class  of  contracts,  viz.  contracts  for  the  with- 
drawing of  opposition  to  railway  bills  in  parliament. 
The  projectors  of  a  railway  come  to  parliament  to 
obtain  the  necessary  powers  for  the  execution  of 
their  purpose  ;  they  find  the  success  of  their  scheme 
threatened  by  the  opposition  of  parties  whose  in- 
terests the  intended  line  of  railway  is  calculated  to 
affect.     To  buy  off  this  opposition,  they  enter  into 

(c)  Be  Grave,  v.  Mayor,  &;c.  of  Monmouth,  4  C.  &  P.  Ill  ; 
see  also  ante,  p.  137,  and  Foss  v.  Hurbotlle,  2  Hare,  494. 

(rf)  When  company  liable  for  expenses  incurred  in  obtaining 
act,  see  post,  Cap.  7,  Part  I.  s.  3. 


Liabilities  of  a  Railway  Company.  163 

certain  arrangements  with  the  opposing  parties,  on 
the  faith  of  which  the  opposition  is  withdrawn,  and 
the  projectors  are  thus  enabled  to  obtain  their  act, 
and  all  the  extensive  powers  which  it  confers  ; 
although  there  is  here  no  contract  binding  on  the 
company  in  law,  still  they  cannot  exercise  the  powers 
given  by  parliament  to  the  projectors  in  their  cor- 
porate capacity,  and  at  the  same  time  refuse  to 
comply  with  the  terms  upon  the  faith  of  which  they 
were  permitted  to  obtain  such  powers.  They  can- 
not claim  to  stand  in  the  place  of  the  projectors, 
and  reap  the  benefit  of  the  arrangements  the  latter 
have  entered  into,  and  at  the  same  time  repudiate 
those  arrangements,  (e) 

208.  To  give  a  party  an  equity  of  this  kind 
against  a  railway  company,  several  things  must 
concur  ;  1st,  there  must  be  an  agreement ;  2dly, 
the  projectors  must  receive  the  benefit  of  the  agree- 
ment;  and  lastly,  the  thing  bargained  for  by  the 
opposite  party  must  be  a  collateral  advantage,  and 
not  any  thing  in  direct  opposition  to  the  act  of  parlia- 
ment. 

209.  First  then,  in  general  an  agreementhetvceen 
the  parties  is  necessary  to  lay  a  foundation  for  the 
above  equity.  An  assent  to  the  passing  of  the  bill 
given  upon  certain  conditions  is  not  sufficient  for 
this  purpose ;  as  for  instance,  where  the  trustees  of 
a  turnpike  road  assent  to  the  passing  of  a  bill  for  a 
railway,  on  the  condition  that  the  railway  shall 
pass  over  the  road  at  a  sufficient  elevation,  and  that 

(e)  Doo  V.  The  London  and  Croydon  Railway  Company,  1 
Railw.  Cas.  259  ;  Edwards  v.  Grand  Junction  Railwaij  Com- 
pany, 1  Myl.  &  Cr.  650;  S.  C.  7  Sim.  337;  Stanleii  v.  Chester 
and  Birkenhead  Railway  Company,  3  Myl.  &  Cr.  773  ;  S.  C. 
1  Railw.  Cas.  58  j  9  Sim.  264. 


164       Company  as  constituted  under  the  Act. 

the  road  shall  not  be  lowered  or  otherwise  pre- 
judiced. There  is  nothing  in  this  to  prevent  the 
parties  so  assenting  from  opposing  the  bill,  for  the 
purpose  at  least  of  procuring  a  clause  to  be  intro- 
duced into  the  bill  to  the  effect  of  the  modification 
upon  which  they  insist.  If  they  do  not  choose  to  do 
this,  and  the  legislature,  upon  a  view  of  the  terms  of 
the  assent,  think  it  right  to  pass  the  bill  without 
insisting  on  a  compliance  with  such  terms,  a  court 
of  equity  can  look  only  to  the  act  of  parliament,  and 
cannot  consequently  restrain  the  company  from  enfor- 
cing the  full  powers  thereby  vested  in  them,  though 
in  so  doing  they  may  violate  the  conditions  annexed 
to  the  assent.(/)  So,  if  a  party  upon  the  faith  of  re- 
presentations made  by  the  projectors  declare  his 
intention  not  to  oppose  the  measure,  but  still  re- 
serve to  himself  an  ulterior  right  to  dissent,  it 
would  be  difficult  to  hold  the  company  bomid  by 
an  equity  arising  out  of  such  representations  for 
which  no  consideration  is  in  effect  given,  (g-)  So, 
where  there  is  a  negociation  about  the  withdrawal 
of  opposition  to  a  bill,  and  an  approximation  to  an 
agreement,  which  the  opposing  party  by  mistake 
supposes  to  be  an  actual  binding  agreement,  and  on 
the  faith  thereof  withdraws  his  opposition  ;  still,  if 
there  be  no  binding  agreement  ever  in  fact  con- 
cluded, a  court  of  equity  would  not,  it  seems, 
decree  a  performance  of  the  terms  of  the  supposed 
agreement  against  the  company ;  and  this  notwith- 
standing the  projectors  might  have  known  that  the 

(_/")  Aldred  and  others  v.  The  North  Midland  Railway  Com- 
pany, 1  Railway  Cas.  404. 

(g)  Judgment  of  Vice-Chancellor  in  Hargreaves  x.The  Lan- 
caster and  Preston  Junction  Railway  Company,  1  Railway  Cas. 
429. 


Liabilities  of  a  Railway  Company.  165 

other  side  was  acting  on  a  mistaken  reliance  that  an 
agreement  was  subsisting,  and  therefore  have  had 
reason  to  suppose  that  the  withdrawal  of  the  op- 
position was  owing  to  that  error ;  (h)  possibly,  how- 
ever, though  a  court  of  equity  would  not  under  such 
circumstances  enforce  a  specific  performance  of  the 
supposed  agreement,  a  prayer  for  relief  grounded  on 
the  special  circumstances  of  the  case  might  be  more 
successtli].  (i) 

210.  Secondly,  the  projectors  mnst  receive  the 
benefit  of  the  agreement ;  therefore,  if  it  is  an  unqua- 
lified assent  that  is  bargained  for,  and  the  party  is 
returned  as  neutral,  or  as  a  dissenting  party,  it 
would  seem  that  the  agreement  would  hardly  be 
deemed  binding  in  equity  on  the  company,  (/c) 

211.  Lastly,  it  would  seem  that  a  court  of 
equity  cannot  interfere  against  the  direct  operation 
of  the  act  of  parliament;  and  therefore  it  is  only 
where  something  collateral  is  sought,  that  it  can 
give  its  assistance.  Where,  therefore,  a  party  filed 
a  bill  to  restrain  a  railway  company  from  entering 
upon  and  taking  possession  of  a  particular  field  and 
plantation,  on  the  ground  of  an  equity  arising  out 
of  his  having  withheld  his  opposition  to  the  com- 
pany's bill,  in  reliance  on  certain  representations 
made  by  the   projectors,   the  act   of  incorporation 

{h)  Sheffield  Canal  Company  v.  Sheffield  and  Rotherham 
Railway  Company ,  3  Railway  Cas.  121  ;  there  is  an  appeal  to 
the  Chancellor  in  this  case. 

(i)    Ibid.     Judgment  of  the  Master  of  the  Rolls. 

(/c)  See  Hargreaves  v.  The  Lancaster  and  Preston  Junction 
Railway  Company,  1  Railw.  Cas.  428  ;  see  also  Greenhalgh  v. 
Manchester  and  Birmingham  Railway  Company,  1  Railw.  Cas. 
92;  S.  C.  9  Sim.  416. 


1 66        Company  as  constituted  under  the  Act. 

entitling  the  company  to  make  their  terminus  in  this 
field,  the  court  held  they  could  not  interfere,  as  it 
would  in  effect  be  saying  that  the  railway  should 
not  commence  at  the  place  at  which  the  legislature 
had  appointed  it  to  commence,  (l) 

212.  But  suppose  that,  after  the  agreement  is 
made  for  the  party's  giving  his  assent  to  the  under- 
taking on  certain  terms,  a  material  change  is  made 
in  the  organization  of  such  undertaking,  as,  for  in- 
stance, where  the  line  of  railway,  the  name,  mem- 
bers, or  the  like  are  varied ;  still  if  the  projectors, 
under  their  new  organization,  adopt  and  make  use 
of  that  assent  in  obtaining  their  act,  the  persons 
incorporated  by  that  act  cannot  refuse  to  deal  with 
the  party  on  the  terms  of  the  agreement,  (w)  If,  on 
the  other  hand,  ihe  new  association  do  not  make  use 
of  the  party's  assent  in  obtaining  the  desired  powers, 
there  would  seem  to  be  no  equity  for  the  company 
who  succeed  in  their  place  being  bound  by  the 
tei'ms  on  which  that  assent  was  given.  («) 

21 S.  Although  a  court  of  equity  so  far  recognizes 
the  connection  between  the  company  and  the  ori- 
ginal projectors  as  to  restrain  the  former  from 
exercising  the  powers  conferred  by  the  act,  in  vio- 
lation of  arrangements  made  with  the  latter,  and  on 
the  faith  of  which  the  act  has  been  obtained ;  yet  it 
seems  highly  questionable  whether  this  doctrine  can 

{I)  H ar greaves  V.  The  Lancaster  and  Preston  Jimctiou  Rail- 
uciy  Campany,  1  Railw.  Cas.  430. 

(m)  Stanley  v.  The  Chester  and  Birkenhead  Railway  Company, 
1  Railw.  Cas.  58  ;  S.C.3  Myl.  &  Cr.  773 ;  9  Sim.  264. 

(ft)  See  the  argument  and  the  judgment  of  the  Vice-Chan- 
-cellor  in  Greenhalgh  v.  The  Manchester  and  Birmingham  Rail- 
way  Company,  1  Railw.  Cas.  92;  S.  C.  9  Sim.  416. 


Liahilities  of  a  Railway  Company.  167 

be  carried  further  than  what  is  requisite  for  securing 
to  the  opposite  party  the  protection  for  wliich  he 
bargained,  and  whether  accordingly,  as  long  as  the 
company  are  content  to  lie  by  and  make  no  use  of 
the  powers  of  their  act  in  derogation  of  good  faith, 
such  opposite  party  can  enforce  a  specific  perform- 
ance of  the  supposed  engagement.  Such  a  doctrine 
is  at  least  open  to  very  strong  objection,  on  account 
of  its  manifest  tendency  to  force  upon  the  company 
the  performance  of  what  may  often  be  in  contraven- 
tion of  the  tenor  and  purpose  of  their  act,  and  so 
unduly  to  interfere  with  the  discretion  given  them 
by  the  act.  (o) 

214.  Istly.  Of  the  nature  and  effects  of  a  contract, 
assuming  it  to  be  such  as  a  railway  company  is 
capable  of  concluding,  and  2ndly,  to  be  so  concluded 
as  to  bind  the  company ;  and  herein,  1  st,  of  the  re- 
quisites of  such  contract;  2ndly,  of  the  laws  of  con- 
struction by  which  it  is  governed;  and  .jrdly,  of  ^'^4- 
legal  incidents. 

215.  1st.  The  requisites  of  a  contract  concluded 
by  a  railway  company,  so  far  as  regards  either  the 
substance  or  form,  differ  in  nothing  from  those  of  the 
contract  of  any  ordinary  person.  There  must  there- 
fore be,  1st,  an  opposite  party  capable  of  being  con- 
tracted with  ;  2ndly,  a  mutual  assent ;  3rdly,  a  good 
consideration  ;  4thly,  a  lawful  subject  matter ;  and 
lastly,  where  the  contract  is  such  as  falls  within  the 
Statute  of  Frauds,  the  requisites  of  that  statute  must 
be  complied  with.  To  instance  the  second  propo- 
sition, a  negotiation  was  entered  into   between  the 

(o)  See  Tomlinson  v.  The  Manchester  and  Birmingham  Rail- 
way Company,  2  llailw.  Cas.  104. 


168        Company  as  constituted  under  the  Act. 

respective  agents  of  a  canal  company  and  an  in- 
tended railway  company  about  the  withdrawal  of 
opposition  by  the  former  to  the  latter's  bill.  The 
agent  of  the  railway  projectors  in  the  first  instance 
made  an  offer,  which  the  agent  of  the  other  side 
rejected  ;  the  latter,  however,  subsequently  became 
anxious  to  renew  the  treaty,  and  made  an  offer  on 
his  part  embodying  certain  terms.  The  agent  of 
the  railway  projectors  acceding  to  these  terms  only 
in  part,  the  agent  of  the  canal  company  in  the  first 
instance  refused  to  close  with  him,  and  again  broke 
off  the  treaty  ;  but  subsequently  he  became  willing 
to  accept  the  proposed  terms,  and  wrote  to  that 
effect  to  the  other  party,  who,  however,  took  no 
notice  of  the  communication  :  it  was  held  that^  after 
rejecting  the  offer  of  the  other  side,  the  agent  of  the 
canal  company  was  not  at  liberty  at  his  own  option, 
without  the  renewed  concurrence  of  the  former,  to 
convert  that  offer  into  a  binding  agreement;  and 
that  there  being  no  mutual  consent,  an  agreement 
was  never  obtained ;  and  a  bill,  consequently  pray- 
ing a  specific  performance  of  the  supposed  agree- 
ment on  behalf  of  the  canal  company,  was  dismissed 
with  costs,  (p) 

216.  Again,  to  consider  the  fourth  requisite,  viz. 
the  legality,  &c.  of  the  subject  matter.  Where  a  con- 
tract, which  it  is  sought  to  enforce  against  the  com- 
pany, is  illegal,  or  inconsistent  with  the  company's 
act,  and  prejudicial  to  the  shareholders,  or  such  as 
the  company  are  only  induced  to  conclude  by  some 

(p)  Sheffield  Canal  Ccmpanij  v.  Sheffield  and  Rotherham  Rail- 
way Cnmpany,  3  Rail'.v.  Cas.  121 .  There  is,  however,  an  appeal 
pending  in  this  case. 


Liabilities  of  a  Railway  Company.  169 

fraud,  misrepresentation,  or  other  dishonest  practice 
on  the  part  of  the  opposite  party,  the  company  are 
not  liable,  (q) 

21  ?.  As  to  what  is  a  sufficient  compliance  with  the 
Statute  of  Frauds  ;  where  an  order  is  given  by  a 
railway  company  for  goods  of  more  than  10/.  value, 
some  of  which  are  ready  made  at  the  time  of  the 
contract,  and  the  rest  are  to  be  manufactured  ac- 
cording to  order,  and  the  goods  which  are  ready 
made  are  afterwards  delivered  and  paid  for,  the 
acceptance  of  them  is  a  part  acceptance  of  the  whole,, 
such  as  satisfies  the  provisions  of  the  Statute  of 
Frauds,  2.9  Car.  2,  c.  3,  s.  17,  and  the  9  Geo.  4,. 
c.  14,  s.  7,  as  the  whole  forms  one  entire  con- 
tract. (?) 

218.  2ndly.  The  same  laivs  of  construction  are 
applicable  to  the  contracts  of  railway  companies  as 
to  those  of  ordinary  persons.  The  intention  of  the 
parties  accordingly,  as  it  is  collected  from  the  entire 
agreement,  must  be  taken  as  the  governing  prin~ 
ciple  of  interpretation  in  regard  of  all  (s)  such  con- 

(q)  Hill  V.  Manchester  and  Salford  Watei'  Works  Companij, 
2  B.  fie  Ad.  544  ;  case  of  same  name,  5  B.  &  Ad.  866 ;  Clarke 
V.  Imperial  Gas  Light  and  Cuke  Company,  4  B.  &  Ad.  315. 

(?•)  Scott  V.  Eastern  Counties  Railway  Company,  12  M.  & 
W.  33. 

(s)  Jones  V.  The  Great  Western  Railway  Companii,  1  Railw. 
Cas.  684.  In  that  case  there  was  an  agreement  for  the  purchase 
of  a  portion  of  a  field  by  the  company  for  229/. ;  120/.  for  the 
land,  and  109^  for  compensation  for  damage.  The  agreement 
contained  a  stipulation  that  in  case  additional  land  was  wanted 
it  should  be  taken  and  paid  for  at  the  same  rate  per  acre.  It 
was  held  that  the  company,  upon  their  wanting  a  second  portion 
of  the  same  field,  were  to  pay  for  it  at  the  same  rate  per  acre  as 
for  the  former  piece,  and  likewise  for  the  damage  that  might  be 

I 


170       Compaiuj  as  constituted  under  the  Act. 

tracts.  A  contract  for  the  supply  of  locomotive 
oigines  contained  a  provision  that  each  engine 
should  be  subject  to  the  performance  of  a  distance 
of  1000  miles  with  proper  loads,  and  that  a  month 
should  be  allowed  for  the  trial,  during  which  time 
the  manufacturers  were  to  be  liable  for  any  breakage 
which  might  occur,  if  arising  from  defective  mate- 
rials or  workmanship  ;  but  that  if  the  company  did 
not  avail  themselves  of  the  trial,  or  it  proved  satis- 
factory, the  manufacturers  should  be  released  from 
all  further  responsibility  in  respect  of  the  engines. 
It  was  also  agreed  that  the  fire-boxes  should  be 
made  of  copper  7-lGths  of  an  inch  thick,  and  that 
the  best  materials  and  workmanship  should  be  used. 
It  was  held  that  the  obvious  intention  of  the  parties 
was  by  the  trial  to  put  an  end  to  all  questions  as  to 
the  quality  of  the  work  and  materials,  and  that  con- 
sequently, after  the  trial  was  over  and  had  proved 
satisfactory,  the  company  could  not,  in  the  absence 
of  fraud,  take  any  objection  on  that  score,  though 
nine  months  afterwards  one  of  the  fire-boxes  burst, 
v/hen  it  was  discovered  tiiat  the  copper  was  reduced 
to  the  thickness  of  o-16ths  of  an  inch,  {t') 

219.  Srdly.  A  contract  to  which  a  railway  company 
is  a  party  carries  with  it  the  like  incidents  as  an  ordi- 
nary contract.  Where  there  is  a  condition  precedent 
imposed  by  the  contract  on  the  opposite  party,  he 
must  show  it  to  have  been  performed  or  dispensed 
with,  to  entitle  himself  to  recover  against  the  com- 


done  by  the  severance  in  addition  ;  as  the  former  payment  could 
not  be  meant  to  include  the  damage. 

(()  Sharpe   v.   Great    V/estem   Railway   Company,  2  Railw. 
Cas.  722;  S.  C.  9  M.  &  W,  7. 


Lmhiliiles  of  a  Railway  Company.  171 

pany.  {u)  As  for  instance,  where  a  railway  company 
contract  for  a  supply  of  ballast  to  be  screened  to 
their  engineer's  satisfaction,  they  are  not  liable  upon 
such  contract,  unless  the  ballast  is  in  point  of  fact 
shown  to  have  been  screened  to  the  engineer's  satis- 
faction, (x) 

220.  Equity  will  relieve  against  fraud,  breach  of 
contract,  or  oppression  in  a  railway  company  as 
much  as  in  an  ordinary  person.  (?/)  Suppose  there- 
fore that  a  party  contract  with  a  railway  company 
for  the  performance  of  certain  work,  and  that  by  the 
terms  of  the  contract  the  engineer,  or  other  officer 
of  the  company,  is  constituted  judge  of  the  amount 
of  work  from  time  to  time  done  by  the  contractor, 
in  order  to  the  apportionment  of  the  payments 
accordingly,  the  latter  may  go  into  equity  for  relief, 
if  it  appear  that  the  engineer,  &c.  by  his  mode 
of  estimating  the  works,  does  not  give  him  all  that 
he  is  entitled  to  claim  under  the  contract,  the  inves- 
tigation requisite  to  determine  this  point  being  of  a 
character  that  can  only  take  place  under  the  super- 
intendence of  a  court  of  equity,  and  being  impossible 
to  be  made  in  a  court  of  law,  (?/) 

221.  So  where  in  an  ordinary  case  a  court  of 
equity  would  decree  the  specific  performance  of  a 
contract,  they  will  do  so  against  a  railway  company, 
as  for  instance,  where  there  is  a  contract  by  the 
company  to  do  certain  defined  work  on  their  own 

(m)  Parkes  v.  Tlte  Great  Weitern  Railway  Company,  3  Railw. 
Cas.  17;  S.  C.  6Jur.  628. 

(t)  Ibid. 

(y)  Ranger  v.  The  Great  Western  Railway  Companv,  1  Rail. 
Cas.  1 ;  S.  C.  3  Railw.  Cas.  298. 

I  2 


1 72       Company  as  constituted  under  the  Act. 

land,  in  the  performance  of  which  the  opposite  party 
has  so  material  an  interest,  that  its  non-performance 
cannot  be  adequately  compensated  by  damages  at 
law.  {s) 

222.  If  a  railway  company  (a)  agree  for  the  pur- 
chase of  land,  they  stand  in  the  position  of  any  ordi- 
nary purchaser.  Supposing  therefore  the  company 
deliberately  take  possession  before  the  purchase  is 
complete,  and  this  without  the  consent  of  the  owner, 
as  a  general  rule,  they  become  liable  to  perform  the 
contract  specifically  on  their  part,  and  may  at  the 
same  time  be  restrained  from  retaining  such  posses- 
sion until  the  purchase  money  is  paid  into  court.  (6) 
And  the  court  may  order  the  money  to  be  paid  in, 
though  the  company  are  willing  to  give  up  the  pos- 
session, (c)  This,  however,  does  not  apply  to  a 
case  where  the  acts  relied  on  as  constituting  a  taking 
possession  on  the  part  of  the  company  have  been 
done  under  a  mistake,  and  when  the  company  sub- 
sequently do  all  that  they  can  to  rectify  the  mis- 
take, (d) 

(s)  Storer  v.  The  Great  Western  liailuay  Company,  3  Railw. 
Cas.  106;  S.  C.  2  Y.  &  C.  N.  C.  48  ;  see  ante,  p.  123. 

(a)  As  to  the  liability  the  company  incur  by  giving  a  notice 
of  their  intention  to  take  lands  under  their  act,  see  post,  sub-sect. 
7,  p.  199.  As  to  their  liability  for  compensation  money  as- 
sessed by  a  jury,  and  the  mode  of  enforcing  the  same,  see  same 
sub-sect.  post. 

(6)  Hyde  v.  The  Great  Western  Railway  Company,  1  Railw. 
Cas.  278  ;  Robertson  v.  The  Great  Western  Railway  Company, 
ibid.  459. 

(c)  Judgment  of  Vice-Chancellor  in  Tomliiison  v.  The  Man- 
chester and  Birmingham  Railway  Company,  2  Railw.  Cas.  104. 

(d)  Tomlinson  v.  The  Manchester  and  Birmingham  Railwaif 
Company,  2  Railw.  Cas.  104. 


Ltahilities  of  a  Railway  Company.  175 

223.  If  a  railway  company  contract  for  the  pur- 
chase of  land,  which  may  or  may  not  be  eventually 
required  for  the  purposes  of  their  act,  the  company 
being  undetermined  whether  to  carry  their  line  through 
the  land  in  question,  or  in  a  direction  to  avoid  it  (in 
which  latter  case,  of  course,  their  authority  to  pur- 
chase such  land  under  their  act  would  be  at  an  end), 
a  court  of  equity  would  hardly,  it  is  conceived,  de- 
cree a  specific  performance  of  such  a  contract  while 
this  state  of  things  continues,  as  the  effect  might 
be  to  thrust  upon  the  company  as  purchasers  land 
which  in  the  event  they  might  prove  incapable  of 
taking,  (e)  Not  but  what  if  the  owner  could  show 
that,  owing  to  the  conduct  of  the  company,  he  has 
been  incapacitated  from  applying  his  land  to  some 
profitable  use  as  he  otherwise  might  have  done  ;  or 
that  he  has  been  led  on  by  the  company  to  give  up 
in  their  favour  some  particular  speculation  that  he 
had  formed  for  employing  his  property ;  he  might 
perhaps  in  those  respects  be  entitled  to  relief,  if  he 
shaped  his  complaint  accordingly,  (y  ) 

II. — Of  the  Liabilities  of  a  Railway  Company 
in  Tort, 

224.  It  is  proposed  in  the  next  place  to  treat  of 
the  liabilities  of  railway  companies  ex  delicto  ;  and 
here  three  questions  suggest  themselves  for  our 
consideration.  1st,  how  far  a  railway  company  is 
capable  of  committing  a  tort ;  2ndly,  when  a  tort  can 
he  considered  to  be  the  piddic  act  of  the  company  as 

(e)  See  Tomlinsoti  v.  The  Manchester  and  Birmingham  Bail- 
way  Company,  2  Railvv.  Cas.  104. 
(/)  Ibid. 


1 74        Company  as  constituted  under  the  Act. 

such;  and  3rdly,  assuming  an  act  to  be  such  as  a 
railway  company  is  competent  to  do,  and  to  be  in 
point  of  fact  or  law  their  act,  what  are  its  character 
and  incidents. 

225.  1st.  A  railway  company  being  a  mere  politic 
person,  cannot  itself  be  guilty  of  a  trespass  or  other 
like  act,  which  implies  a  physical  capacity  of  action. 
But  still  it  may  in  point  of  fact  authorize  the 
commission  of  such  acts  by  another  on  its  behalf. 
It  seems  to  follow,  that  at  all  events  whatever  act  a 
railway  company  can  in  its  politic  capacity  compe- 
tently order  to  be  done  on  its  behalf,  it  is  liable  for 
the  consequences,  if  it  be  of  a  tortious  nature,  and 
to  the  prejudice  of  others,  (g)  Now  in  general  under 
this  description  are  to  be  included  such  acts  alone 
as  are  expressly  authorized  by  the  company's  statute, 
or  are  fairly  and  reasonably  requisite  for  attaining  the 
purposes  of  its  institution.  Supposing  therefore  the 
act  in  question  not  to  be  fairly  reducible  to  either  of 
these  heads,  the  safer  course  would  seem  to  be  to 
seek  a  remedy  against  those  to  whom  the  act  can 
be  immediately  brought  home  in  their  individual 
capacity. 

226.  2ndly.  We  have  to  consider  when  a  tort  may 
be  taken  to  he  the  act  of  the  company  as  such.  A 
railway  company,  we  have  seen,  may  act  in  three 
ways,  either  by  the  resolutions  of  a  public  meeting, 
or  by  a  vote  of  the  directors,  or,  lastly,  by  an  agent 
duly  appointed  under  the  common  seal  of  the  com- 
pany, (/i)  The  two  former  modes  of  action  indeed 
may  be  regarded  as  in  a  great  measure  coincident 

{g)  See  Yarhorough  v.  The  Bank  of  England,  and  cases  there 
cited,  16  East,  6. 

{K)  See  ante,  p.  70  et  seq. 


Liabilities  of  a  Railway  Company.  1 75 

with  the  latter  ;  as  to  carry  out  the  vote  of  the  com- 
pany or  the  directors,  the  co-operation  of  a  duly 
constituted  agent  is  in  general  necessary. 

227.  Although  ordinarily  it  may  he  necessary 
that  the  agent  of  a  railway  company  should  have  an 
authority  under  their  common  seal,  in  order  to  render 
the  company  liable  in  tort  for  his  acts,  yet  tlie  rule 
must  at  any  rate  be  understood  with  certain  excep- 
tions. Ordinary  services,  for  instance,  constitute 
one  class  of  established  exceptions  ;  ( i )  and  again, 
where  an  act  is  done  for  the  benefit  of  a  railway 
company,  and  they  subsequently  adopt  and  avail 
themselves  of  it,  the  company  cannot,  it  should 
seem,  excuse  themselves,  on  the  ground  of  the  actors 
not  being  authorised  under  the  common  seal  of  the 
company,  (k)  Even  where  it  is  essential  that  the 
company  should  have  authorized  the  act  under  their 
common  seal,  such  an  authority  will  be  presumed 
after  verdict.  (1) 

228.  The  act  of  the  servant  or  agent,  in  order  to 
charge  the  company,  must  of  course  be  such  as  falls 
within  the  scope  of  the  former's  authority.  A  con- 
tractor for  the  execution  of  railway  works  it  seems 
is  to  be  deemed  an  agent  of  the  company,  and  there- 
fore what  he  does  in  the  course  of  the  execution  of 
such  works  is  the  act  of  the  company,  (m)     And 

(  i  )  Carrf  v.  Matheus,  1  Salk.  191  ;  Manhy  v.  Long.  3  Lev. 
107. 

(k)  See  Smith  v.  The  Birmingham  Gas  Light  Company,  1 
Ad.  &  E.  .'J26. 

(I)  Yarboiough  v.  The  Bank  of  England,  16  East,  6  ;  see 
also  Thames  Haven  Dock  and  Railway  Company  v.  Hall,  5  M. 
&  Gr.  274. 

(m)  Seniple  v.  The  London  and  Birmingham  Raihcay  Com- 
pany, I  Railw.  Ca3.480. 


176       Company  as  constituted  under  the  Act. 

where  the  company  give  a  general  authority  to  a 
party  to  manage  any  branch  of  their  business,  what- 
ever that  party  does  in  the  fair  exercise  of  such 
authority  the  company  are  responsible  for ;  even 
though  they  are  ignorant  of  the  particular  plan 
adopted  by  him,  and  though  such  plan  be  a  depar- 
ture from  the  original  and  understood  method,  which 
the  company  had  no  reason  to  suppose  was  discon- 
tinued. (??) 

229.  3rdly.  We  have  to  inquire  into  the  character 
and  incidents  of  the  supposed  acts  of  the  company. 
Such  acts  are  mainly  reducible  to  three  heads  ;  1  st, 
acts  done  in  violation  of  those  general  duties  which  a 
railway  company,  in  common  with  the  ordinary  mem- 
bers of  the  community,  owe  to  that  community ;  2dly, 
acts  do7ie  or  omitted  to  be  done  in  violation  of  their 
duty  as  owners  of  property  whether  real  or  personal ; 
and  3rdly,  acts  done  or  omitted  to  he  done  against  the 
duties  cast  upon  them  by  their  act  or  acts  of  incor- 
poration, or  any  general  act. 

230.  First,  for  any  damage  to  or  conversion  of 
another's  personal  property,  or  for  any  other  like 
tortious  interference  with  the  same,  a  railway  com- 
pany are  clearly  liable.  Where  therefore  the  com- 
pany seized  the  plant,  materials,  &c.  of  a  railway 
contractor,  under  a  clause  of  forfeiture  contained  in 
the  latter's  contract,  the  contractor  having  previously 
become  bankrupt  and  the  subject  matter  of  for- 
feiture consequently  having  been  removed  by  the 
intervention  of  the  title  of  the  assignees,  an  action 
of  trover  was  held  to  lie  against  them  at  the  suit  of 
the  assignees,  (o)   So,  likewise,  for  any  act  of  ouster, 

(n)  Rei  V.  Medley,  6  C.  &  P.  292. 

(o)  Rourh  V.  Great  Western  Railway  Company,  2  Railw.  Cas. 


Liabilities  of  a  Railnmy  Company.  177 

waste,  trespass,  nuisance,  or  the  like,  the  company 
are  liable.  As  where,  under  a  demise  of  buildings, 
&c.  from  three  out  of  four  tenants  in  common,  with 
liberty  to  pull  down  such  buildings  and  erect  their 
works,  and  lay  the  railway  across  the  premises,  the 
company  proceeded  to  pull  down  the  buildings,  and 
laid  their  railway  over  part  of  the  premises,  &c.,  it 
was  held  that  the  remaining  co-tenant,  vvho  had 
refused  to  join  in  the  lease  to  the  company,  might 
recover  his  share  in  ejectment,  (p)  And  in  such  a 
case  a  court  of  equity  would  not  interfere  to  restrain 
the  tenant,  as  soon  as  he  is  put  in  possession  of  his 
part,  from  taking  up  the  railway  laid  down  by  the 
company,  Ike,  the  latter  having  acted  throughout  in 
defiance  of  the  tenant's  legal  rights.  ((/) 

^.'3 1 .  If  the  act  of  the  company  be  of  such  a  kind 
as  to  threaten  or  actually  to  prove  productive  of 
serious  or  irreparable  injury  to  a  party's  rights,  he 
may  apply  to  a  court  of  equity  for  an  injunction  ;  as 
for  instance,  where  a  railway  company  carted  a  large 
quantity  of  clay  on  a  road,  which  a  party  had  a  right 
to  use  as  a  means  of  access  to  his  wharf,  and  thereby 
created  a  considerable  obstruction  to  the  entrance 
into  the  wharf,  the  intention  of  the  company  at  the 
same  time  being  to  bring  a  much  larger  quantity 
and  deposit  it  in  the  same  place,  it  was  held  that  the 
owner  of  the  wharf  had  a  right  immediately  to  apply 

505 ;  S.  C.  1  A.  &  E.  X.  S.  51  ;  4  P.  &  D.  686  ;  Haiclhon,  v. 
Newcaslle-upnn-Tyne  and  North  Shields  Bailwaif  Cumpanv,  2 
Railw.  Cas.  288  ;  5.  C.  3  A.  &  E.  N.  S.  734,  n.  (a). 

(p)  Doe  (1.  WaWH  V.  Horn,  5  M.  &  W.  564  ;  6.  C.  3  M.  Sc 
W.  333. 

(q)    The    Durham   and    Sunderland    Railway    Company    v. 
Wawn,  2  llailw.  Cas.  398  ;  S.  C.  3  Beav.  119. 
I  5 


178       Company  as  constituted  under  the  Act. 

to  a  court  of  equity  for  relief,  and  was  not  bound  to 
wait  and  try  tlie  effect  of  remonstrance,  (r) 

232.  2ndly.  Where  a  railway  company  make 
such  an  use  of  their  own  property  as  to  prejudice  their 
neighbour  s  rights,  they  are  liable  for  the  damage 
occasioned  thereby.  As  if  the  company  erect  coke 
works  on  their  own  premises,  which  prove  to  be  of 
so  dangerous  and  unwholesome  a  nature  as  to  be  a 
nuisance  to  the  neighbourhood,  the  parties  whose 
health  or  property  is  affected  in  consequence  may 
have  an  action  on  the  case  against  the  company. 
And  when  once  their  legal  right  is  established  by  a 
verdict,  or  in  the  first  instance,  as  it  should  seem, 
where  they  can  make  out  a  case  of  serious  or  irre- 
parable mischief,  they  may  apply  to  a  court  of  equity 
for  an  injunction  to  restrain  the  further  continuance 
of  the  nuisance,  (s) 

233.  Srdly,  A  company  is  clearly  liable  for  any 
breach  of  the  duties  resulting  from  their  act,  8fc. ;  now 
a  company  may  offend  against  the  tenor  of  their  act 
in  three  ways  ;  1st,  by  not  doing  what  they  ought 
to  do  under  the  act,  8fc.;  2dly,  by  doing  that  which 
they  ought  not  to  do ;  3dly,  by  doing  amiss  what  the 
act  authorizes,  and  what  they  may  do. 

234.  1st,  then,  a  railway  company  as  such  are 
liable  for  a  nonfeasance  or  omission  to  perform  a 
duty  cast  on  them  by  their  act,  and  this  even  cri- 
minally. Thus  an  indictment  has  been  held  to  lie 
against  a  railway  company  by  their  corporate  name 
for  disobedience  to   an   order  of  justices,  &:c.   re- 

(r)  Semple  v.  The  London  and  Birmingham  Hailuay  Com- 
pany, 1  Railw.  Cas.  480. 

(s)  Semple  v.  The  London  and  Birmingham  Railuaii  Com- 
pany, 1  Railw.  Cas.  120. 


Liahililles  of  a  Railway  Com'pamj.  179 

quiring  them  to  execute  certain  vvorks^  pursuant  to 
their  act.  (t) 

235.  So  likewise  where  an  accident  is  occasioned 
by  the  company's  neglecting  to  erect  proper  gates 
and  fences  along  the  line  of  railway,  or  to  keep  them 
in  proper  repair  or  properly  closed  after  they  are 
erected,  the  company  are  liable,  (m) 

236.  2dly.  If  a  railway  company  do  what  their 
act  does  not  authorize,  they  are  liable  for  any  mis- 
chief that  may  thereby  be  occasioned  to  a  third 
party,  (v)  As  for  instance,  where  a  railway  com- 
pany erected  a  station  and  embankment  near  a  house 
used  as  a  starch  manufactory,  and  thereby  obstruct- 

(t)  Reg.  V.  The  Birmingham  and  Gloucester  Railway  Cora- 
pany,  3  Railw.  Cas.  148  ;  S.  C.  3  A.  &  E.  N.  S.  223  ;  1  G.  & 
D.  457. 

(u)  Thus  where  cattle  escaped  on  to  the  railway  through  au 
adjoining  gate,  and  were  in  consequence  run  over  by  a  train 
passing  along  the  line,  in  an  action  brought  against  the  com- 
pany, Lord  Abinger,  C.B.,  before  whom  the  case  came  on  to 
be  tried,  left  it  to  the  jury  to  say  whether  the  fastening  of  the 
gate  was  sufficient,  and  if  so,  whether  they  considered  it  had  been 
left  open  by  any  one  other  than  the  company's  servants. — Cook 
V.  Aylesbury  Railway  Company,  Hertford  Assizes,  1842. 

And  again,  in  Hope  v.  Newcastle  and  Darlington  Railway 
Company,  wliich  was  an  action  brought  for  an  injury  to  a  pon}- 
under  similar  circumstances,  tiie  judge  left  it  to  the  jury  to  say, 
upon  the  facts  of  the  case,  whether  they  thought  the  accident 
attributable  to  any  negligence  of  the  company  in  respect  of  the 
state  of  the  gate  through  which  the  pony  escaped,  there  being 
evidence  that  the  gate  in  question  would  not  close  after  being 
opened  of  its  own  accord  ;  the  jury  found  a  verdict  for  the 
plaintiff,  though  the  gate  was  proved  to  have  been  shut  half  an 
hour  before.  The  Court  subsequently  refused  to  grant  a  new- 
trial,  &c.     Northern  Spring  Circuit,  1845. 

(v)  When  a  branch  railway  made  along  a  public  highway  a 
nuisance  and  indictable,  see  ante,  p.  80  et  seq. 


1 80        Company  as  constituted  under  the  Act. 

ed  its  light  and  otherwise  damaged  it,  the  house 
not  being  specified  in  the  schedule  of  the  act,  and 
being  of  a  class  which  the  company  were  prohibited 
by  their  act  from  damaging  without  the  consent  in 
writing  of  the  owner,  which  they  had  not  obtained, 
it  was  held  that  the  company  were  liable  in  an  ac- 
tion on  the  case,  at  the  suit  of  the  reversioner,  for 
such  damage,  {w) 

237.  It  is  to  be  observed  that  in  this  case  the 
mischief  was  of  a  character  tliat  might  have  been 
foreseen  when  the  station  and  embankment  were 
made.  Had  the  mischief  been  such  as  could  not 
have  been  foreseen,  as,  for  instance,  in  the  case  of 
the  stopping  of  a  spring  communicating  with  a 
house  protected  by  the  statute,  &c.,  another  consi- 
deration would  have  come  into  play  in  tlie  com- 
pany's favour,  viz.  that  of  the  inconvenience  to  the 
company  in  being  exposed  to  actions  for  unforeseen 
consequential  damages  resulting  from  their  acts  to 
the  class  of  property  in  question  ;  a  consideration 
which  possibly  might  have  been  thought  a  sufficient 
ground  for  exempting  tlie  company  from  liability 
to  be  sued,  and  for  leaving  the  injured  party  to  his 
remedy  under  the  compensation  clause  of  the  sta- 
tute, {x) 

238.  3dly,  The  company  are  liable  for  injury  or 
mischief  occasioned  by  their  doing  negligently  or  in  an 
improper  manner  that  which  they  are  authorized  by  the 
statute  to  do.  Suppose  tliat  in  making  the  necessary 
excavations  for  the  railway,  they  proceed  in  so  negli- 

(it)   Turner  v.    The  Sheffieltl  and  Rothei-ham  Railivay  Com- 
pany, 3  Railvv.  Cas  222  ;  S.  C.  10  i\I.  ,k  W.  425. 
(a)  Ibid. 


Liabilities  of  a  Railway  Company.  181 

gent  or  incautious  (y)  a  manner  as  to  endanger  the 
adjoining  property,  or  dig  so  near  an  ancient  house 
or  other  building,  which  has  the  right  of  being 
supported  by  their  land,  as  to  withdraw  a  portion 
of  its  foundations,  and  consequently  to  weaken  (2) 
and  undermine  it,  the  company  are  liable  to  the 
owner  for  the  injury  he  sustains  in  consequence; 
or  an  injunction  may  in  such  a  case  be  obtained 
to  restrain  the  company  from  proceeding  further 
in  the  course  complained  of.  (~)  So  likewise  an 
action  lies  against  a  railway  company  for  building 
one  of  the  arches  of  the  railway  with  a  projecting 
cornice  so  as  to  obstruct  the  light  and  air  of  two 
cottages,  and  prevent  the  owner  from  raising  his 
boundary  wall  beyond  the  height  of  the  arch,  should 
he  be  so  minded,  i^a)  Upon  a  like  principle  it  would 
seem  that  a  railway  company  is  indictable,  if,  in 
carrying  their  railway  across  a  public  thoroughfare 
under  the  usual  powers  given  for  that  purpose  by 
the  legislature,  their  works  are  not  so  constructed 
as  either  to  cause  no  inconvenience  at  all,  or  at  any 
rate  the  least  possible  inconvenience  to  the  public,  (b) 
And  mere  expense  in  such  a  case  is  no  excuse  for 
not  making  the  road  over  or  under  the  line  of  rail- 
way as  convenient  as   before,  (c)     But   where  the 

(y)  Davis  v.   The  London  and  Blarkuall  liailway  Com]iany, 

2  Railw.  Cas.  308  ;  6'.  C,  1  M.  &  Gr.  799. 

(i)  See  Wurhurton  and  others  v.  The  Loudon  and  Biackviall 
Railway  Company,  1  Railw.  Cas.  564. 

(a)  Dickman  v.  BLickwalL  Itailway  Company,  N.  P.  coram 
Lord  Denman,  June  29,  1841. 

(6)    Reg.  V.  The  London  and  Southampton  Railway  Company, 

3  Railw.  Cas.  34,  n.  (a)  ;   Reg.  v.  Scott,  3  Railw.  Cas.    187  ; 
6'.  C.  3  A.  &  E.  N.  S.  543. 

(c)  Reg.  V.  Scott,  ubi  supra. 


182        Com'pany  as  constituted  under  the  Act. 

work  done  by  the  company,  though  not  absolutely 
necessary  for  the  making  of  the  railway,  is  yet  pro- 
ductive of  no  material  practical  inconvenience  to  the 
public,  and  evinces  in  the  mode  in  which  it  is  done 
a  reasonable  regard  to  the  interests  both  of  the  com- 
pany and  tlie  public,  there  no  indictment  lies  against 
the  company.  ((/) 

239.  So  likewise,  where  the  company  themselves 
become  the  carriers  on  their  own  railway,  they  are 
liable  for  any  injury  occasioned  to  the  adjoining  pro- 
perty by  the  negligent  or  improper  management  of 
any  engine,  carriage,  &c.,  which  they  employ  in  the 
course  of  their  business,  (e)  Where,  therefore,  a 
party's  stack  in  a  field  near  a  railway,  and  about 
eleven  yards  off  the  rails,  was  set  on  fire  by  some 

(rf)  Eeg.  V.  Sharpe,  3  Railw.  Cas.  33,  n.  (a). 

(e)  Aldridge  v.  Great  Western  Railway  Company,  2  Railw. 
Cas.  852  ;  S.  C.  3  IM.  &.  Gr.  515.  Hammim  v.  South  Eastern 
Railway  Company,  Maidstone  Spring  Assizes,  1845.  That  was 
also  an  action  for  the  destruction  of  farm  buildings,  including  a 
thatched  barn,  5cc.,bj'fire,  owing,  as  was  alleged,  to  sparks  being 
negligently  suffered  to  escape  from  an  engine  of  the  defendants 
passing  along  the  line.  There  was  evidence  of  the  fire  havine 
been  caused  by  the  defendants'  engine ;  it  appeared  further,  that 
the  engine  in  question  iiad  no  wireguard  to  the  chimney,  or  per- 
forated plate  to  the  smokebox,  although  both  these  methods  were 
shown  to  have  been  used  to  some  extent  for  the  purpose  of  pre- 
venting accidents  to  adjoining  property  by  the  escape  of  ignited 
matter  from  engines.  There  was  also  evidence  that  it  was  mainlj' 
where  engines  were  overtasked  that  thay  were  liable'  to  emit 
sparks,  and  that  in  various  other  instances  there  had  been  dis- 
charges of  sparks,  &c.  from  the  company's  engines.  Lord  Den- 
man,  C.  J.,  before  whom  the  cause  came  on  to  be  tried,  directed 
the  jury  that  it  lay  upon  the  plaintiff  to  establish  negligence, 
find  that  they  were  therefore  to  consider  whether,  under  all  the 
circumstances  of  the  case,  negligence  were  proved,  directing 


Liabilities  of  a  Railway  Company.  183 

sparks  that  escaped  from  an  engine  passing  by,  it 
being  admitted  that  the  engine  was  such  as  was 
usually  employed  on  railways,  and  that  at  the  time 
of  the  accident  it  was  used  in  the  ordinary  manner, 
and  for  purposes  authorized  by  the  company's  act, 
it  was  held  that  this  was  no  answer  to  an  action  on 
the  case,  brought  against  the  company  for  the  loss, 
but  that  it  still  left  a  question  for  the  jury  to  decide, 
viz.  whether  the  bare  fact  of  the  escape  of  the  sparks 
from  the  engine,  though  one  in  ordinary  use,  was 
not  an  element  of  negligence.  (/") 

240.  But  where  the  company  do  nothing  more  than 
what  their  act  authorizes  them  to  do,  and  that  in  a 
reasonably  proper  manner,  there  it  seems  the  com- 
pany are  exempt  from  all  liability  (save  under  the 
compensation  clause  of  their  act),  for  any  mischief 
or  inconvenience  that  their  acts  may  occasion  either 
to  the  public  or  individuals ;  because  (to  the  extent 
at  least  that  such  damage  or  inconvenience  is  the 
obvious  and  probable  result  of  the  powers  conferred 
on  the  company)  it  must  be  presumed  to  have  been 
in  contemplation  of  the  legislature  in  incorporating 
the  company  and  granting  them  their  powers,  and 
to  have  been  sanctioned  accordingly  for  the  sake  of 
the  greater  advantages  to  be  derived  by  the  public 

them  to  take  into  account  as  an  element  of  consideration  that 
had  plaintiff  tiled  his  barn  he  might  have  prevented  the  accident 
altogether ;  and  also  further  to  consider,  whether  there  was  any 
evidence  to  satisfy  them  that  the  train  had  gone  too  fast.  The 
plaintiff  had  a  verdict,  and  the  Court  subsequently  refused  to 
grant  a  new  trial. 

Taylor  v.  South  Eastern  Railway  Conrpany,  tried  at  the  same 
assizes,  was  an  action  of  the  same  nature  as  the  preceding,  and 
attended  with  a  like  result. 

(/)  Ibid. 


1 84        Carnpany  as  constituted  under  the  Act. 

in  general  from  the  railway.  When,  therefore,  an 
act  of  parliament,  in  unqualified  terms,  authorizes  a 
company  to  make  a  railway  in  a  certain  defined  line, 
which  in  part  is  parallel  and  adjacent  to  an  old  high- 
way, and  to  use  locomotive  engines  on  such  railway, 
the  company  cannot  be  indicted  for  a  nuisance  in 
consequence  of  their  locomotive  engines  having 
frightened  the  horses  of  persons  using  the  old  high- 
way, (g) 

241.  Where  one  railway  company  become  lessees 
or  occupiers  of  the  line  of  another  company,  and 
take  the  traffic  into  their  hands,  for  anything  done 
in  the  course  of  the  management  of  that  traffic  by 
the  former  company's  servants,  the  remedy  must,  it 
seems,  be  sought  against  that  company.  (/<) 

(o-)  Rei  V.  Pease,  4  B.  &  Ad.  31.  As  to  when  a  branch  rail- 
way is  indictable  as  a  nuisance,  see  Bez  v.  Morris,  1  B.  ^.  Ad. 
441,  ante,  p.  80  et  seq. 

(h)  So  ruled  by  Gurney,  B.,  in  an  action  brought  against  the 
Northern  and  Eastern  Railway  Company  for  the  act  of  a  servant 
of  the  Eastern  Counties  Railway  Company,  who  at  the  time  of 
the  occurrence  were  the  occupiers  of  the  line  of  the  Northern 
and  Eastern  Company.  WheUlul  v.  Northern  and  Eastern  Bail- 
way  Company  (and  rule  for  new  trial  refused),  N.  P.  1844. 


Of  Compensation.  185 


Sub-Sect.  7. —  Of  Compensation. 

I.  At  what  Time  Compensation  to  be  made. 
II.  In  regard  of  what  Interests. 

III.  For  what  Injuries. 

IV.  Of  the  Proceedings  to  ascertain  the  Amount  of  Compen- 

sation. 

1.  Where  Company  the  moving  party. 

(1.)  Of  the  Notice  to  take  Lands. 
(2.)  Of  the  Precept. 
(3.)  Of  the  Inquisition. 

2.  Where  Owner  of  Land,  &c.  the  moving  party. 

V.  Of  moving  for  a  New  Trial,  Certiorari  to  remove  and 
quash  Inquisition,  &c. 

VI.  Of  the  Title. 
VII.  Of  the  Conveyance. 
VIIT.  Of  the  Purchase  Money. 

IX.  Of  the  Costs. 

I.   Time  of  making  Compensation,  (i) 

242.  In  general  the  making  or  tendering  of  com- 
pensation is  constituted  by  a  railway  act  a  condition 
precedent  to  the  company's  entering  upon  or  exer- 
cising any  dominion  over  the  land  which  they  are 
empowered  by  their  act  to  take  or  deal  with  for  the 
purposes  of  the  railway,  {k)     Even  though  the  lan- 

(i)  It  should  seem  that  a  party,  entitled  to  an  easement  over 
lands  purchased  by  the  company,  ought  in  general  to  claim  com- 
pensation under  the  act  as  soon  as  any  damage  is  actually 
sustained  ;  see  Thicknesse  v.  Lancaster  Canal  Company,  4  M.  & 
W.472. 

(k)  As  to  provision  of  Lands  Clauses  Consolidation  Act  (8 
Vict.  c.  18)  on  subject  of  entry  on  Lands,  see  Act,  s.  84 — 90, 
post,  App. 


186        Comjxiny  as  co?istituied  under  the  Act. 

guage  of  the  act  in  imposing  such  a  condition,  if  taken 
strictly,  would  seem  applicable  only  to  a  jmrchase  of 
lands  by  the  company,  it  must,  nevertheless,  it  seems, 
be  construed  by  intendment  to  embrace  the  case 
of  lands  liable  to  be  damaged  or  injuriously  affected, 
as  it  would  be  a  manifest  inconsistency  in  the  act 
itself  to  give  leave  to  enter  into  lands  to  do  any  kind 
of  damage  without  previously  making  or  tendering 
compensation,  and  yet  at  the  same  time  to  declare, 
where  the  object  is  purchase,  that  the  company  shall 
not  enter  without  previous  payment.  (/) 

243.  The  12th  section  of  the  North  Midland 
Railway  Act  conferred  on  the  company  the  usual 
powers  of  taking  lands,  S:c.  subject  to  the  condi- 
tion that  they  were  to  make  full  satisfaction  for  the 
land  to  be  so  taken,  and  for  all  damages  by  reason  of 
the  execution  of  any  of  the  powers  of  the  act.  The 
31st  section  enabled  proprietors  of  land  to  receive 
payment  for  their  land,  and  also  compensation  for 
damages  sustained  by  the  taking  of  it,  Sec. ;  the  32nd 
section  provided  for  the  impanelling  of  a  jury  in 
cases  of  differences  between  the  company  and  the 
owners  of  lands  which  should  be  taken  or  injuriously 
affected,  to  assess  the  amount  of  the  purchase-money 
and  compensation.  The  53rd  section  enabled  the 
company,  upon  payment,  &c.  of  the  money  agreed 
on  or  awarded  for  the  purchase  of  any  lands,  &-c.  im- 
mediately to  enter  upon  such  lands  ;  provided  that 
before  such  payment  it  should  not  be  lawful  for  them 
to  enter  upon  such  lands.  It  was  held,  that  the  com- 
pany could  not  enter  on  the  plaintiff's  land  for  the 

(i)  Innocent  v.  Konh  Midland  Railway  Company,  1  R.  Cas. 
255. 


Compensation.  187 

purpose  of  taking  the  subsoil  to  form  an  embank- 
ment, without  previously  paying  or  tendering  com- 
pensation, (w) 

244.  Sometimes,  however,  the  act  dispenses  with 
the  above  condition  in  cases  of  a  mere  temporary 
occupation  («)  of  land  by  a  company,  the  character 
and  extent  of  which,  and  of  the  damage  it  may  occa- 
sion, is  scarcely  ascertainable  in  the  first  instance, 
and  the  company  is  enabled  to  take  possession  of  the 
land  without  previously  compensating  the  owner, 
subject  of  course  to  the  necessity  of  so  doing  at  such 
future  period  as  is  specified  by  the  act.  The  dig- 
ging up  and  removing  the  subsoil  of  land  cannot  be 
deemed  a  temporary  taking  possession  of  such  land 
within  the  meaning  of  the  ordinary  provisions  on 
this  subject,  (m) 

II.  In  regard  of  what  Interests. 

245.  So  far  as  regards  a  strict  legal  interest,  little 
difficulty  can,  in  general,  be  felt,  (o)  Where  the 
statute  speaks  of  owners  and  proprietors  in  defining 
the  parties  entitled  to  compensation  (ji)  these  terms 
are  not,  it  seems,  to  be  understood  simply  of  the 

(jii)  Innocent  v.  North  Midland  Railway  Comp.,  1  R.  Cas.  265. 

(n)  As  to  provisions  of  Railways  Clauses  Consolidation  Act 
(8  Vict.  c.  20,)  on  subject  of  temporary  occupation  of  lands, 
see  act,  ss.  30 — 44,  post,  App. 

(o)  As  to  provision  enabling  the  owner  of  any  house,  build- 
ing, &c^  part  of  which  is  required  for  the  purpose  of  a  railway, 
to  insist  on  the  purchase  of  the  whole,  see  ante,  pp.  112,  113; 
and  as  to  closely  analogous  provision  enabling  the  owner  of  any 
house,  building,  &c.  situate  within  a  given  distance  of  the  railway, 
and  deteriorated  by  it,  to  insist  on  the  company's  purchasing  it, 
see  ante,  pp.  114,  115. 

(p)  Lister  V.  Lobley,  6  Nev.  &  M.  340. 


1 88       Company  as  constituted  under  the  Act. 

owners  of  the  inheritance,  but  may  be  taken  to  em- 
brace generally  the  interests  of  all  persons  having  a 
beneficial  interest  (</)  in  the  land,  and  of  termors  (r) 
among  the  rest. 

246.  Where  there  is  a  change  in  the  owner- 
ship of  land  pending  the  settlement  of  a  claim 
for  damage  done  to  such  land  by  a  railway  com- 
pany, semble,  the  compensation  for  such  damages, 
if  temporary,  belongs  to  the  party  who  had  the  legal 
estate  when  the  damage  was  done,  but,  if  permanent, 
goes  with  the  land  to  the  subsequent  owner,  (s) 

247.  A  party  entitled  to  an  easement  over  lands 
purchased  by  the  company  cannot,  it  seems,  under 
the  general  provisions  of  a  railway  act,  maintain  an 
action  for  acts  done  upon  those  lands  by  the  com- 
pany to  the  prejudice  of  his  easement  (so  far  at 
least  as  such  acts  are  done  in  the  execution  of  the 
purposes  of  the  act),  but  ought,  as  soon  as  any  da- 
mage is  actually  sustained,  to  claim  compensation 
under  the  act  (r). 

248.  It  is  an  usual  enactment  in  a  railway  act  to 
require  that  tenants  (t)  at  will,  lessees  for  a  year,  or 
from  year   to    year,    and  other  persons  having  no 

(q)  See  note(p),  ante,  p.  187. 

()•)  Lessee  underletting,  when  special  case  held  not  to  show 
sufficient  interest  of,  in  premises  to  entitle  him  to  compensation 
under  canal  act,  see  Thicknesse  v.  Lancaster  Canal  Company,  4 
M.  &  W.  472. 

(s)  See  judgment  of  Alderson,  B.,  in  Cator  v.  Croydon 
Canal  Company,  4  Y.  &  Coll.  405. 

(t)  As  to  the  provisions  of  Lands  Clauses  Consolidation  Act 
(8  Vict.,  c.  18)  in  regard  of  leases,  see  act,  ss.  119 — 122,  post, 
A  pp.  As  to  the  right  of  compensation  of  lessee  of  coal  mines, 
see,  aute,  p.  120,  n.  (y). 


Compensation.  189 

greater  interest  than  the  above,  shall  give  up  pos- 
session to  the  company  at  six  months'  notice,  the 
latter  being  bound  to  make  any  such  parties  an 
adequate  compensation  where  they  are  required  to 
do  so  before  the  expiration  of  their  term,  &c.  The 
effect  of  this,  in  case  of  a  tenancy  from  year  to  year, 
is  to  enable  the  company  either  to  give  the  or- 
dinary landlord's  notice  ending  with  the  current  year 
of  the  tenancy,  in  which  case  no  compensation  is 
due  to  the  tenant,  or  six  months'  notice  under  the 
act,  terminating  at  any  time,  in  which  case  the 
tenant  becomes  entitled  to  compensation  for  the 
value  of  the  term  between  the  expiration  of  the  six 
months'  notice  and  the  time  when  a  regular  land- 
lord's notice  would  have  expired.  To  entitle  the 
tenant  to  such  compensation  the  premises  must  be 
actually  given  up.  (ii)  If,  instead  of  this,  the  com- 
pany choose  to  waive  their  notice  so  far  as  regards 
the  time  of  giving  up  the  premises,  and  offer  the 
tenant  to  let  him  remain  in  possession  till  the  expi- 
ration of  his  current  year,  and  he  elects  to  do  so, 
this  places  the  parties  in  the  same  situation  as  if 
a  regular  landlord's  notice  had  been  originally 
given,  and  the  tenant  can  claim  no  compensation, 
inasmuch  as  he  has  voluntarily  retained  posses- 
sion, (x)  It  makes  no  diflerence  that  the  company 
do  not  become  landlords  until  after  the  notice  is 
given,  it  being  a  notice  that  was  meant  to  operate 
under  the  act,  and  that  would  have  done  so  but  for 
the  subsequent  conduct  of  the  parties,  (a-) 

(«)  Heg.  V.  The  London  and  Southampton  Railway  Comyany, 
1  R.  Cas.  722  ;  S.  C.  10  A.  &  E.  3  ;  2  P.  &  D.  243. 

(i)Reff.  V.  The  London  and  Southampton  Railway  Company, 
ubi  supra. 


1 90       Company  as  constituted  under  the  Act. 

249.  Where  a  railway  company  choose  to  avail 
themselves  of  the  above  powers  of  their  act  to  gain 
possession  of  premises,  semhle  this  operates  as  a 
determination  of  the  tenancy  by  the  act  of  the  law. 
The  tenant  accordingly  becomes  entitled  to  an  ap- 
portionment of  the  then  current  rent  as  against  his 
landlord.  Such  apportionment,  however,  can,  it 
seems,  only  date  from  the  time  when  the  tenant, 
according  to  the  provisions  of  the  act,  was  under 
the  absolute  necessity  of  quitting  possession.  If  he 
choose  to  give  up  the  premises  before  this  period, 
it  must  be  regarded,  not  as  the  act  of  the  law,  but 
as  his  own  voluntary  act,  that  evicts  him,  and  he 
must  therefore  submit  to  pay  the  rem  up  to  the 
period  until  which  he  might  have  retained  posses- 
sion, {y) 

3-50.  But  the  occupant  of  premises  required  for 
the  purposes  of  a  railway  may  have  an  interest  {z) 
in  those  premises,  which,  without  strictly  falling  under 
the  above  definition  of  a  legal  interest,  is  yet  highly 
valuable,  and  which,  but  for  the  passing  of  the  act 
the  tenant  might  have  hoped  to  enjoy  for  a  pro- 
longed term,  such  as  an  interest  in  regard  of  the 
goodwill  of  a  business,  the.  hope  of  a  beneficial  re- 
newal, tenant's  fixtures  (a),  improvements,  and  the 
like.      An  interest,  however,   of  this   kind,   is    too 

(i/)  Wainwright  v.  Ramsden,  5  M.  &  W.  602. 

(z)  In  regard  of  what  tenant  at  will,  &c.  entitled  to  compen- 
sation under  Lands  Clauses  Consolidation  Act  (8  Vict,  c.  18,) 
see  act,  sect.  121,  post,  App. 

(a)  As  to  when  tenant  entitled  to  compensation  for  goodwill, 
improvements,  6cc.,  see  cases  decided  on  Hungerford  Market 
Company's  Act,  2  B.  Sc  Ad.  341,  348  ;  4  B.  &  Ad.  596,  592, 
600,  n.  (c)  •  9  A.  &  E.  463. 


Compensation.  191 

slight  and  precarious  to  be  made  a  ground  for  com- 
pensation, except  there  are  conclusive  words  in  the 
act  of  parliament  to  embrace  it.  It  will  not,  there- 
fore, be  held  to  be  included  in  the  terms  of  an  act 
which  speaks  simply  of  the  value  of  the  tenant's  un- 
expired term  and  interest.  (6) 

III.   For  what  Damages. 

2ol.  Our  third  head  of  inquiry  is  as  to  the  kind 
of  damage  for  which  a  party  may  claim  compensa- 
tion under  the  ordinary  provisions  of  a  railway  act 
on  that  subject,  (c)  For  the  purpose  of  such  in- 
quiry cases  of  damage  caused  by  a  railway  company 
may  be  regarded  in  two  lights  :  1st,  according  to 
tlieir  general  nature  and  character  ;  and  2ndly,  ac- 
cording to  the  time  of  their  accruing. 

The  former  head  of  inquiry  again  subdivides 
itself  into  several  :  1st,  whether  the  damage  is 
caused  in  the  execution  of  the  powers  of  the  act ; 
:2ndly,  whether  it  is  independent  or  not  of  a  taking 
of  land  ;  and  Srdly,  assuming  it  to  be  so,  and  the 
act  to  make  provision  for  compensating  such  species 
of  damage,  whether  it  is,  in  other  respects,  of  a  cha- 
racter contemplated  by  the  act  as  a  ground  of  com- 
pensation. 

2.52,  Character  OF  Damage.  1st.  Whether  caused 
la  execution  of  Act.  (c)  In  general,  to  entitle  a  party 
to  compensation,  under  a  railway  statute,  for  any  act 

(fe)  Rex  V.  Liverpool  and  Manchester  Railway  Company,  4  A. 
&  E.  650. 

(c)  As  to  provision  of  Lauds  Clauses  Consolidation  Act  (8 
Vict.  c.  18,)  on  this  head,  see  Act,  s.  18,  et  seq.  post,  App.,  and 
s.  68,  lb. 


192         Company  as  constituted  under  the  Act. 

of  the  company,  it  must  be  something  done  in  the 
execution  of  the  powers  of  the  act.  (e).  Where, 
therefore,  the  company  are  guilty  of  a  clear  excess 
of  the  authority  conferred  on  them  by  their  act,  as, 
for  instance,  by  doing  what  their  act  prohibits,  the 
injury  thereby  occasioned  would  seem  to  be  more 
properly  remediable  by  action  than  by  seeking  com- 
pensation under  the  company's  act  ;  accordingly, 
where  a  company  in  the  execution  of  the  powers  of 
their  act  erected  a  railway  station  and  embankment 
near  a  house  used  as  a  starch  manufactory,  and 
thereby  obstructed  its  lights,  &c.,  the  house  being 
of  a  class  which  the  act  expressly  declared  they 
should  not  take,  injure,  &c.  without  the  owner's  con- 
sent in  writing,  and  no  such  consent  having  been  ob- 
tained, it  was  held  that  an  action  lay  against  the  com- 
pany for  the  damage,  {f  ) 

253.  Assuming  the  act  complained  of  to  be  done 
in  the  execution  of  the  powers  of  the  act,  it  remains, 
secondly,  to  be  considered  whether  it  is  independent 
or  not  of  a  taking  of  land,  {g)  The  latter  class  of  in- 
juries, viz.  those  connected  with  a  taking  of  land, 
are  those  for  which  a  railway  act  in  a  greater  or  less 
degree  invariably  provides  compensation.  (//)     With 

(e)  See  as  to  this  point.  Rex  v.  The  Hmigerford  Market  Com' 
-pany  3  X.  &  M.  622  ;  S.  C.  1  A.  &  E.  678  ;  Rex  V.Nottingham 
Old  Watenonrks  Company,  6  A.  &  E.  355. 

(f  )  Turner  v.  Sheffield  and  Rotherham  Railway  Company,  3 
R.  Cas.  222  ;  S.  C.  10  M.  &  W.425. 

(g)  See,  ante,  n.  (c),  p.  191. 

(/i)  It  has  however  been  questioned  whether,  under  the  pro- 
visions of  the  Eastern  Counties  Railway  Act,  6  &  7  Will.  4, 
C.  cvi.,  a  jury  have  power  to  award  compensation,  not  merely 
for  the  general  injury  sustained  by  the  severance  of  land  taken 


Compensation.  193' 

regard  to  the  former  class,   the  question  how  fat 
compensation  can  be  claimed  for  them  or  not,  must 
depend  upon  the  terms  of  the  particular  act.     Con- 
sidering, however,    the    nature  of  the  powers  en- 
trusted to  railway  companies,  and  the  great  extent 
of  country  through  which  their  works  are,  generally 
speaking,  intended  to  be  carried  (all  of  which  renders 
it  but  reasonable  that  any  injury  to  property  which 
can  be  shown  to  arise  from  the  prosecution  of  those 
works  should  be  fairly  compensated   to  the  party 
sustaining  it),  it  would  seem  that  where  an  intention 
to  give  compensation  for    injuries  of  the   class  in 
question   is  expressed  in  any  part  of  the  act,  every 
fair  intendment  ought  to  be  given  to  effectuate  that 
intention.     Where,  therefore,   an  act,   in  conferring 
upon  the   company  its  powers  of  taking  land,  &c. 
expressly  declares  that  such  injuries  are  provided 
for   in    the  compensation    clause ;    and    where    the 
earlier  part  of  that  clause  is  sufficient  to  embrace 
all  such  injuries,   such  plain  and  clear  tokens  of  the 
intention  of  the  legislature  can  not,   it    seems,    be 
allowed  to  be  defeated,  simply  because   the  direc- 
tion contained   in  a  subsequent   part   of  the   same 
clause,  as  to  the  finding  of  the  jury,  is    applicable 
only  to  the  case  of  land  taken  and  of  some  ulterior 
damage  thereupon. 

254.  By  a  railway  act  a  company  was  empowered 
to  lower  roads,  &c.  making  full  satisfaction  in  man- 
ner thereinafter  nnentioned  to  persons  interested  in 
lands  to  be  taken,  used,  or  injured  lor  all  damages 
sustained  by  executing  the  powers  of  the  act.     For 

for  the  purposes  of  the  company,  but  also  for  a  total  loss  of  all 
communication.  See  Mamu,,,!^  v.  Eastern  Counties  Railway 
Company,  12  M.  &  W.  237,  judgment  of  Parke,  B. 

K 


1 94       Company  as  constituted  under  the  Act. 

settling  differences  between  the  company  and  per- 
sons interested  in  lands  to  be  taken,  used,  damaged, 
or  injuriously  affected  by  the  execution  of  such 
powers,  if  any  person  entitled  to  such  purchase 
money  or  compensation  as  aforesaid  should  refuse 
the  company's  offer,  the  matter  was  to  be  settled  by 
a  jury,  who  were  to  assess  the  sum  to  be  paid  for 
the  purchase  of  the  lands,  and  also  the  compensation 
for  damages  done  by  severance,  &c.  such  com- 
pensation to  be  assessed  separately  from  the  value 
of  the  land.  It  was  held  that  compensation  was  not 
limited  by  the  act  to  the  cases  of  a  taking  of  or 
entry  upon  land^  bat  might  be  awarded  for  an  injury 
quite  independent  of  any  such  taking  or  entry, 
namely,  for  the  lowering  a  road  on  which  certain 
land  abutted,  and  thereby  injuring  and  deteriorating 
the  land,  impeding  the  access  thereto,  and  rendering 
additional  fences  necessary,  (i) 

25o.  So,  likewise,  where  a  company  entered  upon 
the  adjoining  land  and  began  to  dig  and  remove  the 
subsoil  for  the  purpose  of  making  an  embankment, 
it  was  held  to  be  an  injury  falling  within  the  scope  of 
the  compensation  clause,  though  the  direction  given 
by  that  clause  as  to  the  finding  of  the  jury  was  in 
express  terms  applicable  only  to  the  case  of  a  taking 
of  land  and  of  ulterior  damage  thereupon,  (k) 

256.  3dly,  Assuming  the  class  of  acts  in  question 
to  fall  within  the  scope  of  a  railway  statute,  there 
remains  a  question  as  to  the  general  character  of 

(i)  Heg.  V.  T£,astern  Counties  Railway  Company,  2  A.  6c  £. 
N.  S.  347  ;  S.  C.  -20  Law  Journ.  Q.  B.  66 ;  1  G.  6c  D.  589. 

(k)  See  judgment  of  Vice-Chancellor  in  Innocent  v.  North 
Midland  Railway  Company,  1  Railway  Cas.  242;  see  also  Rex 
V.  Nottingham  Old  Water  Works  Company,  6  A.  &  E,  355. 


Compensation,  195 

the  particular  act,  and  whether  it  is  such  as  makes 
it  a  sufficient  ground  for  compensation.  The  cases 
for  which  a  railway  act  in  general  purports  to  make 
provision  in  this  respect,  are  those  of  lands,  &c. 
damaged,  injured,  or  injuriously  affected,  in  the  exe- 
cution of  the  powers  of  the  act.  (/)  Such  language 
must,  it  is  conceived,  be  understood  of  direct  injuries, 
occasioned  by  some  positive  act  of  the  company, 
as  if  in  the  construction  of  their  works  they  chance 
to  darken  the  lights  of  a  house,  stop  a  drain,  inter- 
rupt a  flow  of  water,  or  the  like.  Accordingly  a 
charge  of  lowering  a  road,  and  thereby  deteriorating 
the  adjoining  land,  impeding  its  access,  and  render- 
ing additional  fences  necessary,  has  been  held  enough 
for  the  purpose,  the  lowering  of  the  road  being  pro- 
vided for  by  the  act.  (in)  So  likewise  the  raising 
the  level  of  a  brook  and  so  causing  an  inundation 
of  the  applicant's  property,  {n)  and  the  making  and 
maintaining  of  a  railway  without  a  sufficient  drainage 
to  protect  the  neighbouring  property,  &c.  whereby 
a  like  result  was  produced,  (o) 

{i)  As  to  provision  of  Lands  Clauses  Consolidation  Act, 
8  Vict.  c.  18, '^on  this  head,  see  act,  s.  68,  post,  App. 

(to)  Heg.  V.  The  Eastern  Counties  Railway  Company,  2  A. 
&L  E.  N.  S.  347 ;  &.  C.  20  Law  Journ.  Q,  B.  66;  1  G.  k  D. 
589.  So  likewise  the  cutting  off  access  to  property  by  raising 
an  embankment  near  it,  and  compelling  the  owner  to  oDen  new 
means  of  access,  &c.  has  been  held  a  sufficient  ground  for  a 
mandamus  issuing  to  a  company ;  Reg.  v.  Bristol  and  Eieter 
Railway  Company,  Crown  Office  Roll,  7  Vict. 

(n)  Reg.  V.  North  Midland  Railway  Company,  2  Railway 
Cas.  1. 

(o)  Reg.  V.  North  Union  Railway  Company,  1  Railway  Cas. 
729.  So  [likewise  the  cutting  off  the  supply  of  water  to  a 
K  2 


196       Company  as  constituted  under  the  Act. 

257.  On  the  other  hand,  (p)  remote  or  trifling 
inconveniences,  or  such  as  are  the  necessary  conse- 
quence of  the  making  of  the  railway,  and  in  a  greater 
or  less  degree  affect  all  the  neighbouring  property, 
cannot  it  should  seem  be  taken  to  fall  within  the 
scope  of  the  provisions  under  consideration,  such  as 
the  loss  of  custom  or  the  diminution  of  the  value  of 
premises  to  sell  or  let,  as  a  shop  or  public-house, 
resulting  from  the  destruction  of  neighbourhood, 
obstruction  of  access  from  the  stopping  of  public 
thoroughfares  in  the  course  of  the  formation  of  a 
railway,  and  the  like,  {q) 

258.  Where  the  language  of  an  act  is  hypothetical 
and  evidently  contemplates  contingent  damages  only, 
it  cannot  it  should  seem  be  extended  to  injuries 
the  necessary  consequence  of  the  execution  of  the 
act.  (r) 

bleaching  ground,  &c.  (Reg.  v.  Sheffield,  Ashton-uvder-Lyne, 
and  Manchester  Railway  Company,  January,  1842)  ;  the  injuring 
a  well  of  spring  water  (Reg.  v.  Manchester  and  Leeds  Railway 
Company,  January,  1843)  ;  the  drying  up  a  pond  in  the  course 
of  excavating  the  railway,  &c.  which  pond  formed  the  water 
boundary  of  certain  premises,  &c.  and  obliging  the  occupiers  to 
make  a  new  fence  ( Reg.  v.  Eastern  Counties  Railway  Company, 
Crown  Office  Roll,  4  Vict.)  ;  and  the  cutting  into  a  principal 
vein  of  coal  below  the  level  of  the  railway,  digging  out  a  quantity 
of"  coal,  ccc.  and  thereby  letting  the  water  into  the  coal  works, 
&c.  (Reg.  V.  Bristol  and  Gloucester  Railway  Company,  Crown 
Office  Roll,  7  Vict.)  have  been  held  sufficient  grounds  for  a 
mandamus  issuing  to  a  company. 

(p)  See  judgment  of  Lord  Denman,  C.  J.,  in  Reg.  v.  Eastern 
Counties  Railway  Company,  ubi  supra. 

(q)  See  judgment  of  Lord  Denman  in  Rex  v.  The  London 
Bock  Company,  5  A.  &  E.  163, 

(r)  See  Rex  v.  The  London  Dock  Company,  5  A.  &  E.  163. 


Compensation.  197 

259.  Secondly.  Of  Damages  viewed  in  respect 
OF  THE  Time  of  their  accruing.  In  order  to  pro- 
vide for  future  damage,  where  there  is  a  subsisting 
cause  of  injury  which  is  incapable  of  beneficial 
alteration  so  as  to  prevent  the  occurrence  of  mis- 
chief, a  railway  act  usually  enacts  that  the  jury  shall 
assess  the  proper  amount  of  compensation,  not  only 
for  past,  but  likewise  for  future  temporary  or  per- 
petual or  for  recux'ring  damages,  the  cause  of  which 
cannot  be  fully  obviated  by  the  company.  To  bring 
a  mischief  within  the  purview  of  this  clause,  it  must 
not  be  merely  speculative  and  imaginary,  and  such 
as  may  never  occur  at  all,  but  it  must  be  one  the 
cause  of  which  is  actually  existing  in  some  work  of 
the  company,  and  of  which  an  example  has  occurred 
in  bygone  time,  so  as  to  afford  a  proper  estimate 
for  the  future :  for  an  instance  may  be  put  the  case 
of  leakage  through  the  banks  of  a  canal,  and  the 
interruption  of  a  watercourse,  the  effect  of  which 
can  be  collected  from  prior  instances  of  mischief,  («) 
Where  therefore  one  railway  is  intended  to  cross 
another,  the  proprietors  of  the  latter  cannot  apply 
for  compensation  on  the  score  of  apprehended  ob- 
struction, but  must  wait  till  the  proprietors  of  the 
former  commence  their  operations  and  those  opera- 
tions are  found  to  produce  actual  injury,  of  a  more 
or  less  permanent  kind,  by  obstructing  the  traffic  on 
the  line  which  is  crossed  by  the  other,  (t) 

(s)  Judgment  of  Parke,  B.,  in  Lee  v.  Milner,  2  M.  &  W. 
842  ;  see  also  Rex  v.  Tke  Justices  of  the  West  Riding  of  York- 
shire,  1  A.  &  E.  571. 

(t)  Lee  V.  Milner,  2  M.  &  W.  824;  see  ako  Thichiesse  v. 
Lancaster  Canal  Company,  4  M.  &  W.  472, 


198       Company  as  constituted  under  the  Act. 

260.  Where  the  character  and  extent  of  a  future 
injury  is  capable  of  being  ascertained,  the  party 
affected  ought  it  seems  to  bring  forward  his  entire 
claim  at  once,  and  not  to  lie  by  and  make  a  fresh 
claim  for  compensation  with  every  fresh  recurrence 
of  the  mischief,  (m)  But  for  a  new  description  of 
injury,  it  would  seem-  to  be  competent  for  a  party  to 
have  a  new  remedy. 

IV.  Proceedings  to  ascertain  Amount  of  Compensation. 

]. — Where  Company  the  moving  Part}'. 
2. — Where  Owner  of  Land,  &c. 

261.  There  are  two  cases  to  be  here  considered: 
the  first,  where  the  company  is  desirous  of  getting 
possession  of  the  land  upon  which  they  are  authorized 
by  the  act  to  enter ;  the  second,  where  an  owner  of 
property  seeks  to  compel  the  company  to  take  the 
entirety  of  his  property,  or  to  make  him  compensa- 
tion for  injuries  which,  as  he  says,  have  been  inflicted 
by  the  company  in  the  course  of  their  works.  Sec. 
In  the  former  case  the  company  is  of  course  the 
moving  party ;  in  the  latter,  the  owner  of  the  pro- 
perty. 

262.  Where  Company  the  moving  Party. 
(1.)  Notice.  First,  then,  suppose  a  company  are 
desirous  of  taking  particular  property  under  the 
provisions  of  their  act,  what  a  railway  act  usually 
prescribes  to  the  company  as  the  first  step,  is  to 
give  a  certain  number  of  days'  notice  to  the  owner 
of  such  property ;   the  object  of  the  notice  is   of 

(it)  See  Rex  v.  Leeds  arid  SeWy  Railway  Company,  3  A.  & 
E.  683,  and  more  particularly  the  judgment  of  Littledale,  J. 


% 
Compensation.  199 

course  to  aftbrd  to  the  owner  precise  information  of 
what  he  is  required  to  treat  for.  It  ought  therefore 
to  show  clearly  and  accurately  the  quantity  of  pro- 
perty intended  to  be  taken,  its  position,  dimensions 
and  figure,  and  where  it  constitutes  a  part  only  of 
the  owner's  entire  premises,  the  particular  manner 
in  which  it  is  to  be  cut  out  of  the  whole,  (v) 

263.  Effect  of  notice.  The  moment  the  company 
have  given  the  notice,  and  thus  communicated  to  the 
proprietor  what  part  of  his  property  they  require,  the 
relative  situation  of  vendor  and  purcliaser  is  thereby 
created  between  them,  {x)  It  gives  the  proprietor 
a  right  to  insist  upon  the  company  taking  that  which 
they  have  given  notice  of  their  intention  to  take,  a 
right  to  be  enforced  by  a  court  of  equity,  or  else 
by  a  court  of  law  by  mandamus.  (?/)  For  by  the 
measure  in  question,  the  company  must  be  con- 
sidered to  have  exercised  the  option  given  them  by 
the  statute  of  purchasing  the  premises,  an  option 
from  which  they  cannot  afterwards  be  allowed  to 
recede. {z) 

264.  Counter  notice  on  part  of  oivner.  Upon  re- 
ceipt of  the  notice,  the  party  to  whom  it  is  given 

(v)  Sims  V.  The  CommerciaL  Railway  Company,  1  Railway 
Cas.  434. 

(i)  Stone  V.  Tlie  Commercial  Railway  Company,  1  Railw, 
Cas.  375 ;  S.  C.  4  Myl.  &  Cr.  122  ;  Doo  v.  The  London  and 
Croydon  Railway  Company,  1  Railway  Cas.  274. 

(jf)  Judgment  of  Lord  Chancellor  in  Stone  v.  The  Commercial 
Railway  Company,  1  Railway  Cas.  400,  401 ;  S.  C.  4  Myl.  & 
Cr.  122. 

(z)  Rex  V.  The  Hungerford  Market  Company,  4  B.  &:  Ad. 
333 ;  Rex  v.  The  Commissioners  for  improving  Market  Street, 
Manchester,  ibid.  n.  (a). 


200  Company  as  constituted  under  the  Act. 
is  within  a  certain  time  to  communicate  to  the  com- 
pany what  the  nature  of  his  estate  is,  and  what  he 
is  willing  to  take  for  it.  The  notice  and  counter 
notice  being  thus  given,  the  parties  have  the  oppor- 
tunity, if  they  can,  of  coming  to  an  amicable  arrange- 
ment, (a) 

265.  (2.)  Precept.  If  the  parties  cannot  agree  at 
all,  or  only  as  to  part  of  the  property  required  by 
the  company,  the  act  then  proceeds  to  provide  (6) 
the  means  by  which  the  remuneration  to  be  paid  the 
proprietor  for  the  lands  in  question  is  to  be  ascer- 
tained ;  viz.  by  empowering  the  company  to  issue  a 
precept  (c)  for  the  purpose  of  bringing  the  case  be- 
fore a  jury,  (a) 

This  precept  must,  in  the  first  place,  he  consistent 
with  the  previous  notice.  The  quality,  quantity, 
position,  dimensions  and  figure  of  the  property  as 
laid  down  in  the  one  must  fairly  tally  with  those 
described  in  the  other.  To  hold  otherwise,  indeed, 
would  be  virtually  dispensing  with  the  previous  no- 
tice required  by  the  act ;  for  the  property  of  which 
the  jury  is  to  fix  the  value  being  that  prescribed  by 

(a)  Judgment  of  Lord  Chancellor  iu  Sione  v.  The  Commercial 
Railway  Company,  1  Railway  Cas.  400,  401  ;  S.  C.  4  Myl.  & 
Cr.  122. 

(b)  The  Lands  Clauses  Consolidation  Act  (8  Vict.  c.  18) 
provides  a  threefold  method  for  settling  cases  of  disputed  com- 
pensation according  to  the  nature  of  the  case,  viz.  by  two  jus- 
tices, or  by  arbitration,  or  by  a  jury.  See  act,  s.  21  et  seq.,  post, 
App. 

(c)  Before  the  precept  issues,  the  Lands  Clauses  Consolidation 
Act  (8  Vict.  c.  18)  requires  that  notice  be  given  to  the  other 
.party.  See  act,  s.  38,  post,  App.  As  to  the  provision  of  the 
same  act  on  the  subject  of  the  precept,  see  ib.  s.  39. 


Compensation.  201 

the  precept,  and  that  precept  being  no  notice  to  the 
other  party,  if  the  company  were  at  liberty  either  to 
exclude  from  the  precept  any  portion  of  the  pro- 
perty comprised  in  the  previous  notice,  or  vice  versa, 
to  include  in  the  former  what  is  not  included  in  the 
latter,  they  might  go  before  the  jury  and  ask  their 
verdict  upon  a  case  touching  which  such  other  party 
had  no  intimation  of  their  real  intention,  and  which 
therefore  in  all  probability  he  could  not  be  prepared 
to  meet. 

266.  Secondly.  The  precept  must  be  addressed  to 
such  party  as  the  act  contemplates.  Where  therefore 
a  railway  act  provides  that  in  the  case  of  the  sheriff 
being  a  shareholder,  or  interested  in  the  matters  in 
question,  the  precept  shall  go  to  another  person, 
a  precept  addressed  to  a  sheriff  so  circumstanced 
would  be  irregular,  (d) 

267.  Thirdly,  The  precept  ought,  it  seems,  to 
show  upon  the  face  of  it,  either  expressly  or  impliedly, 
the  authority  of  the  company  to  issue  the  same  under 
their  act.  (e)  Such  authority,  however,  may  in  ge- 
neral be  presumed  from  the  mere  fact  of  the  issuing 
of  the  precept  by  the  company,  as  this  leads  to  a 
necessary  intendment  that  a  previous  agreement  for 
the  purchase  could  not  be  made,  in  which  case  the 
company  have,  according  to  the  usual  provisions  of 
a  railway  act  on  this  point,  authority  to  issue  their 
warrant,  (e) 

(d)  See  Corrigall  v.  The  London  and  Blockwall  Railway 
Compaiiy,  21  Law  Journ.  C.  P.  209  ;  S.  C.  5  M.  &  Gr.  219. 

(e)  See  Taylor  v.  Clemson,  2  A.  &  E.  N.  S.  1030;  S.  C. 
2  G.  &  D.  346 ;  3  Railw.  Cases,  65. 

K  5 


202         Companij  as  constituted  vnder  the  Act. 

268.  (3).  Inquiry.  The  next  step  to  be  considered 
is  the  inquiry.  This  involves  four  questions  respect- 
ing, first,  the  capacity  of  the  presiding  judge  ;  se- 
cond, the  finding  of  the  jury;  third,  the  form  of 
the  inquisition ;  and,  lastly,  its  effect  in  binding  the 
property. 

269.  First.  The  inquisition  (/)  must  be  holden 
before  the  party  contemplated  by  the  act.  Where 
therefore  a  railway  act  specifies  a  particular  party 
as  judge,  that  party  must  exercise  his  authority  in 
person,  and  cannot  delegate  it  to  another  ;  as  where 
an  act  provided  that  the  precept  should  be  addressed 
to  the  sheriff,  and  if  he  and  the  undersheriff*  were 
interested,  then  to  the  coroner,  &c.,  and  the  inquisi- 
tion was  holden  before  the  clerk  of  the  undersherifF, 
assisted  by  a  barrister  as  assessor,  the  clerk  and 
the  assessor  having  been  appointed  by  the  sheriff 
his  deputies  for  the  purpose,  the  court  seems  to 
have  inclined  to  the  opinion  that  the  proceedings 
were  erroneous,  {g) 

270.  A  railway  act  usually  provides  for  the  case 
of  the  officer  nominated  in  the  act  as  judge  being  a 
shareholder,  by  appointing  another  party  in  such  in- 
stance to  officiate  in  his  stead.     In  such  a  case,  (/<) 

(/ )  As  to  similar  provision  of  Lands  Clauses  Consolidation 
Act  (8  Vict.  c.  18)  on  subject  of  inquisition,  see  act,  s.  43, 
post,  App.  Ten  days'  notice  of  the  inquiry  must  be  given,  ib. 
s.  46. 

(g)  Reg.  V.  The  Sheffield,  Ashton-under-line,  and  Manchester 
Railway  Company,  1  Railway  Cas.  546;  .S.  C.  11  A.  &  E. 
194. 

(/),)  See  Corrigall  v.  The  London  and  Blackmail  Railway 
Company,  21  Law  Journ.  C.  P.  216  ;  S.C.5  M.  &  Gr.  219. 


Compensation.  203 

were  the  interested  party  to  preside  at  the  inquisi- 
tion, the  proceedings  would  be  bad ;  though  if  the 
other  side,  with  notice  of  the  objection,  were  to  appear 
before  such  party  and  suffer  the  inquisition  to  pro- 
ceed, and  judgment  to  be  given  thereon,  it  might 
perhaps  be  construed  into  a  waiver  of  the  informa- 
lity. It  seems  questionable  whether  the  above  pro- 
vision can  be  taken  to  apply  to  a  case  where  the 
party  appointed  to  preside  at  the  trial  is  some  party 
holding  a  particular  office,  and  the  office  is  consti- 
tuted of  two  persons  (as  in  the  sheriffwick  of  Mid- 
dlesex) of  whom  one  only  is  a  shareholder,  (i) 

271.  2dly,  The  finding  of  the  jury  must  be  con- 
sistent with  the  precept.  It  is  the  value  of  the  land 
comprised  in  the  precept  that  the  jury  are  sum- 
moned to  assess.  The  company  cannot  therefore 
at  the  trial  depart  from  their  precept  and  call  on  the 
jury  to  give  a  verdict  touching  any  fraction  of  the 
property  in  question  they  may  think  proper,  {k) 

272.  Where  there  are  different  persons  having 
several  interests  in  the  property  required  for  the 
purposes  of  a  railway,  the  jury,  under  the  usual  pro- 
visions of  an  act,  must  apportion  the  compensation 
among  the  several  parties,  according  to  their  respec- 
tive interests,  at  least  if  they  are  impanelled  to  do 
so ;  and  an  assessment  of  the  compensation  in  one 
gross  sum  would  accordingly  be  bad.  (I) 

The  like  rule  would   seem   to  apply  where  the 

(i)  See  ante,  202,  ti.  (/i). 

(fc)  Judgment  of  Lord  Chancellor  in  Stone  v.  The  Commercial 
Railway  Company,  1  Railw.  Cas.  403  ;  S.  C.  4Myl.  &Cr.  122. 

(/)  See  Rex  v.  The  Trustees  of  the  Norwich  and  Watton  Road, 
5  A.  &  E.  578  ;  S.C.I  Nev.  &  P.  32. 


204         Company  as  constituted  under  the  Act. 

same  party  prefers  a  twofold  claim,  both  for  pur- 
chase-money and  for  damages,  (wi)  if  the  jury  are 
required  at  the  trial  to  make  a  separate  assessment. 
But  if  no  demand  is  made  at  the  time  on  the  part 
either  of  the  company  or  the  claimant  for  a  separate 
assessment,  then  it  seems  a  verdict  is  not  to  be  re- 
garded as  a  nullity,  for  not  adjudicating  separately 
on  each  claim,  even  though  the  act  expressly  de- 
clares that  the  one  claim  shall  be  inquired  into  and 
assessed  separately  from  the  other ;  the  enactment 
in  question  not  being  compulsory,  or  in  the  nature 
of  a  condition  precedent,  so  that  if  it  be  not  ob- 
served all  the  subsequent  proceedings  are  to  be  held 
void,  but  only  directory,  so  as  to  empower  the  com- 
pany or  the  claimant  to  call  on  the  sheriff  to  keep 
the  evidence  distinct  as  to  the  value  of  the  premises, 
and  the  satisfaction  for  damage  done,  and  to  find  and 
adjudicate  a  separate  sum  in  respect  of  each,  (m) 

27S.  Where  the  jury  assess  a  compensation  to  a 
particular  individual  without  noticing  the  interest  of 
any  one  else,  it  is  not  to  be  presumed,  in  the  absence 
of  evidence  to  the  contrary,  that  they  have  given 
such  compensation  for  a  larger  interest  than  the 
party  really  had,  or  have  overlooked  any  other  per- 
son's interest,  (o) 

(m)  As  to  provision  of  Lands  Clauses  Consolidation  Act 
i(8  Vict.  c.  18)  on  this  point,  see  act,  s.  49,  post,  App. 

(n)  In  the  matter  of  the  London  and  Greenwich  Railway 
Company,  2  A.  &  E.  683 ;  S.  C.  A  Nev.  &  M.  458  ;  Corrigall 
V.  The  London  and  Blackuiall  Railway  Company,  21  Law  Journ. 
C.  P.  216  ;  S.  C.5  M.  &  Gr.  219. 

(o)  Rex  V.  Nottingham  Old  Water  Works  Company,  6  A.  & 
E.  355. 


Compensation.  205 

274.  Thirdly.  The  finding  of  the  jury  is  usually 
embodied  in  what  is  termed  an  inquisition.  Such 
inquisition  ought,  it  seems,  of  itself  to  show  that  it 
is  warranted  by  the  act.  It  need  not  however  do 
this  expressly,  but  it  is  enough  if  the  jurisdiction 
appear  by  necessary  intendment.  Now,  under  the 
usual  provisions  of  a  railway  act,  what  is  substan- 
tially necessary  to  give  the  jury  jurisdiction  is,  that 
a  previous  agreement  for  the  purchase  cannot  be 
made.  Hence,  where  the  clause  conferring  the  ju- 
risdiction (p)  runs  in  the  usual  form,  all  that  need 
appear  on  the  face  of  the  inquisition  is  the  bare  cir- 
•cumstance  of  recourse  having  been  had  by  the  com- 
pany to  the  compulsory  process  provided  by  the 
-act,  viz.  by  summoning  a  jury  and  proceeding  to 
judgment  in  the  mode  prescribed  by  the  act,  as  this 
in  itself  affords  a  necessary  inference  that  no  previous 
agreement  for  the  purchase  could  be  made.  ( p)  To 
make  this  appear,  where,  as  is  usually  the  case,  the 
warrant  is  annexed  to  the  inquisition  and  therein 
referred  to  as  so  annexed,  the  two  documents  may 
be  considered  as  one  entire  proceeding,  and  any  de- 
ficiency existing  in  the  one  may  be  aided  by  refer- 
ence to  the  other,  {q) 

275.  From  what  has  been  said,  it  follows  that  in 
general  it  constitutes  no  objection  to  the  inquisition 
that  it  fails  to  mention  the  notice  to  treat,  or  the 
notice  of  the  inquisition  ;  or  in  case  of  the  property 
in  question,  or  any  part  of  it,  having  been  omitted 

(p)  As  to  provisions  of  Lands  Clauses  Consolidation  Act 
^8  Vict.  c.  18)  on  this  point,  see  act,  s.  21  et  seq.,  post,  App. 

(y)  Taylor  v.  Clemson,  2  A.  &  E.  N.  S.  1030;  S.  C.  2  G. 
&  D.  346 ;  3  Railw.  Cas.  65. 


906  Compamj  as  constituted  wider  the  Act. 

in  the  schedule  of  the  act  by  mistake  and  so  certified 
by  two  justices,  that  no  statement  of  the  certificate 
appears  therein ;  (r)  the  effect  of  such  certificate 
being  to  extend  the  operation  of  the  statute  to  the 
lands,  &c.  included  in  the  certificate,  and  to  place 
them  in  the  same  situation  as  if  they  had  been  in- 
serted in  the  original  schedule,  (j) 

576.  In  like  manner,  no  compliance  need  be  shown 
on  the  face  of  an  inquisition  with  a  subsequent 
and  independent  provision  of  the  act  which  in  sub- 
stance operates  as  a  defeasance  of  the  compulsory 
powers  conferred  by  the  act,  but  it  ought  to  come 
by  way  of  answer  from  the  other  side ;  (s)  as,  for 
instance,  where  there  is  in  an  act  a  separate  section 
prescribing  as  a  necessary  preliminary  to  the  exer- 
cise by  the  company  of  their  compulsory  powers  of 
taking  land,  that  the  whole  capital  be  first  sub- 
scribed, an  inquisition  taken  under  such  act  is  not 
void  for  the  want  of  an  averment  that  this  has  been 
done,  (s) 

277.  Where  the  statute  prescribes  no  regular 
form  for  an  inquisition,  the  usual  enactment  (t)  that 
such  inquisitions  shall  be  kept  among  the  records  of 
sessions,  and  shall  be  deemed  records,  does  not 
render  it  necessary  to  draw  them  up  with  the  for- 
mality required  in  setting  out  the  judgment  of  an 
inferior  court.  (?<) 

(r)  Ante,  p.205,  11.(5). 

(s)  Doe  d.  Payne  v.  The  Bristol  and  Exeter  Hailway  Company, 
2  Railw.  Cas.  94  ;  6.  C.  6  M.  &  W.  320. 

(f)  As  to  provision  of  Lands  Clauses  Consolidation  Act 
(8  Vict.  c.  18,)  on  this  head,  see  act,  s.  50,  post,  App. 

(u)  See  judgment  of  Littledale,  J.,  in  Reg.  v.  The  Trustees  of 
Swansea  Harbour,  8  A,  &  E.  439. 


Compensation.  207 

278.  We  have  lastly  to  consider  the  effect  of  the 
inquisition,  (a)  and  on  what  interests  it  must  be 
taken  to  operate.  To  determine  this  point  we  must, 
it  seems,  consider  what  were  the  materials  laid  be- 
fore the  jury  in  order  to  their  forming  their  decision ; 
what  by  the  precept  they  were  called  on  to  do  ;  and, 
the  purport  of  the  inquisition. 

Where  it  appears  clearly  and  definitely  on  the  face 
of  the  proceedings  what  interests  were  under  the 
consideration  of  the  jury  in  estimating  the  amount  of 
compensation,  those  and  those  only  will  be  considered 
as  covered  by  the  sum  awarded ;  as,  for  instance, 
where  a  plan  was  submitted  to  the  jury,  marking  a 
particular  road  as  a  right  to  be  preserved,  it  was 
held  that  they  must  be  taken  to  have  assessed  the 
damages  on  the  supposition  that  the  road  was  to  be 
preserved,  there  being  no  evidence  that  any  thing 
was  laid  before  the  jury  on  either  side  for  the  pur- 
pose of  intimating  to  them  that  they  were  to  value 
the  rest  of  the  property  on  the  supposition  of  the 
road  being  taken  away.  (?/)  So  where  the  inqui- 
sition on  the  face  of  it  professes  to  award  compen- 
sation for  a  particular  description  of  injury,  it  will 
not  be  considered  to  embrace  another  ground  of 
injury  which  is   not   the   subject    of  compensation 

(x)  Where  the  land  of  a  person  incapable  of  consenting  is 
taken  by  a  company,  and  its  value  found  by  an  inquisition,  this 
is  not  a  conversion  of  the  property  so  as  to  alter  its  nature  or 
quality  in  respect  of  devolution  ;  but  the  compensation  money 
devolves  as  the  land  itself  would  have  done  ;  Midland  Counties 
Railway  Company  v.  Ostein,  22  Law  Journ.  Ch.  209  ;  S.  C,  1 
Coll.  74. 

(^y)  Kemp  v.  The  London  and  Brighton  Railway  Company,  1 
Railw.  Cas.  506.  See  also  Rex  v.  The  Nottingham  Old  Water 
Works  Company,  6  A.  &  E.  355. 


208         Company  as  constituted  under  the  Act, 

under  the  provisions  of  the  act ;  even  though  evi- 
dence of  the  existence  of  the  latter  have  been  ad- 
duced before  the  jury,  if  this  may  have  been  done 
to  give  the  sheriff  and  jury  jurisdiction  over  the 
case.  (2) 

279.  Where  the  verdict  of  the  jury  has  not  been 
recorded,  parol  evidence  is  admissible  of  their  find- 
ing, and  of  the  grounds  on  which  it  proceeded  ;  as, 
for  instance,  to  show  that  in  a  particular  case  the 
compensation  was  estimated  upon  the  supposition  of 
there  being  a  total  separation  of  an  estate,  and  of  no 
communication  being  made  by  the  company  between 
the  parts  on  either  side  of  the  railway,  (a) 

280.  Where  other  Side  the  Moving  Party,  (b) 
Secondly,  of  the  case  where  the  other  side  and  not 
the  company  is  the  active  party,  and  the  one  by 
whom  the  process  prescribed  by  the  act  for  settling 
the  amount  of  compensation  in  cases  of  dispute  is 
sought  to  be  set  in  motion.     In  this  case  the  party's 

Jirst  step  is  to  give  the  company  notice  of  his  claim,  (c) 
The  main  requisites  of  this  notice  would  seem  to  be 
much  the  same  as  those  of  a  notice  given  by  the 

(s)  Coriigallx.  The  London  and  Blackivall  Railway  Company, 
21  Law  Journ.  C.  P.  216  ;  5.  C.  5  M.  &  Gr.  219. 

(a)  Manning  v.  The  Eastern  Counties  Railway  Company,  22 
Law  Journ.  Exch.  265  ;  S.  C.  12  M.  &  W.  237. 

(6)  As  to  method  of  proceediug,  &c.  by  party  claiming  com- 
pensation under  Lands  Clauses  Consolidation  Act,  see  act,  s.  68, 
post,  App. 

(c)  Under  Eastern  Counties  Railway  Acts  notice  not  neces- 
sary before  applying  to  magistrate  to  assess  compensation,  in 
cases  where  by  those  acts  jurisdiction  given  to  magistrates,  and 
mandamus  accordingly  granted  to  magistrate  to  hear  case,  which 
he  had  dismissed  for  want  of  proof  of  such  notice :  Reg.  v.  Bing- 
ham,  3  Railw.  Cas.  390. 


Compensation.  209 

company.  Thus  where  a  party  sought  to  compel  a 
company  to  take  certain  premises  as  being  situate 
within  a  given  distance  of  the  railway,  &c.  and  the 
notice,  after  giving  the  company  information  of  his  ■ 
interest  in  the  premises,  and  stating  them  to  be 
within  the  requisite  distance,  &c.  required  a  certain 
sum  as  the  price  of  the  house,  and  another  as  com- 
pensation in  respect  of  loss,  it  was  held  to  put  for- 
ward the  party's  claim  correctly,  (c?)  In  the  next 
place  he  must  request  the  company  to  issue  their 
precept  for  the  summoning  of  a  jury  in  order  to 
assess  the  damages  ;  if  upon  this  th'e  company  resist 
making  compensation,  he  may  then  apply  to  the 
Court  of  Queen's  Bench  for  a  mandamus  to  the 
company  to  take  the  necessary  steps  ibr  the  assess- 
ment of  the  compensation. 

281.  Where  the  company  are  allowed  to  take  pos- 
session of  the  land  in  the  first  instance,  the  applica- 
tion for  a  mandamus  for  the  above  purpose  must  be 
made  within  a  reasonable  time  afterwards,  or  it  may 
not  be  granted,  especially  if  the  owner  have  another 
remedy  by  ejectment,  (e) 

282.  Provision  as  to  giving  Bond.  A  railway  act 
usually  provides  that  a  party  under  such  circum- 
stances shall,  at  his  own  cost,  before  the  company 
shall  be  obliged  to  issue  their  warrant  to  summon  a 
jury,  enter  into  a  bond  to  prosecute  the  complaint 
and  pay  his  proportion  of  the  costs ;  or,  in  case  the 
warrant  is  issued  without  the  bond  having  been 
entered  into,  the  company  may  give  notice  requiring 

(d)  Walker  v.  London  and  Blackmail  Railway  Company,  3 
A.  &  E.N.  S. 744. 

(e)  Rei  V.  Stainforth  and  Keadby  Canal  Company,  1  M.  & 
S.  32. 


210       Company  as  constituted  vnder  the  Act. 

the  same  to  be  done  before  commencing  the  inquiry. 
Under  this  provision  it  would  seem  to  be  discre- 
tionary with  the  company  to  demand  a  bond  or  not, 
*as  they  please.  In  the  absence  consequently  of  any 
demand  on  the  part  of  the  company,  the  entering 
into  the  bond  is  not  a  condition  precedent  to  an 
application  by  the  other  party  for  a  mandamus  to 
the  company  to  issue  their  warrant  for  the  summon- 
ing of  a  jury.  (/) 

283.  Sometimes,  in  default  {g)  of  the  company 
issuing  their  precept  to  the  sheriff  within  a  given 
time,  after  they  have  been  requested  so  to  do  by  the 
other  party,  the  act  empowers  such  party  himself  to 
address  a  request  to  the  sheriff  to  summon  a  jury. 
This  request  should  correspond  in  all  material  re- 
spects with  the  party's  prior  notice,  (/t) 

That  the  officer  to  whom  the  request  is  addressed, 
in  pursuance  of  the  above  provision,  is  a  share- 
holder in  the  company,  seems  to  constitute  no  objec- 
tion to  the  proceedings,  even  though  it  is  expressly 
guarded  against  in  the  ordinary  case  of  the  precept 
being  issued  by  the  company ;  unless,  indeed,  the 
provision  made  in  the  latter  case  is  clearly  intended 
by  the  legislature  to  include  the  one  under  con- 
sideration. (?) 

(_/")  Reg.  V.  The  North  Union  Railivay  Com'pany,  1  Railw. 
Cas.729.. 

(g)  As  to  remedy  of  party  in  this  case  under  Lands  Clauses 
Consolidation  Act,  (8  Vict.  c.  18,)  see  act,  s.  68,  post,  App. 

(/i)  As  to  what  held  an  immaterial  variance,  and  as  to  the 
sufficiency  of  such  a  request,  though  it  did  not  state  correctly  the 
question  to  be  referred  to  the  jury,  see  Walker  v.  London  and 
Blackwall  Itailway  Company,  ubi  supra. 

(i)  Corrigall  v.  The  London  and  Blackwall  Railway  Company, 
21  Law  Journ.  C.  P.  209  ;  S.  C.  5  M.  &  Gr.  219. 


Compensation.  211 

V. — Of  moving  for  a  New  Trial,  Certiorari  to  remove 
and  quash  Inquisition,  ^-c. 

284.  Where  the  sheriff  or  other  presiding  officer 
by  mistake  directs  the  jury  that  the  claimant's  case 
is  not  within  the  act,  and  they  so  find  accordingly, 
and  are  discharged,  a  mandamus  lies  to  the  sheriff, 
&c.  to  execute  the  precept ;  but  the  party  moving 
for  the  rule  cannot  in  such  case  have  his  costs,  the 
necessity  for  the  rule  arising  from  the  mistake  of 
the  judge,  {k) 

285.  Where  the  act  directs  that  the  verdict  of  the 
jury  and  the  judgment  thereon  shall  be  final  and 
conclusive,  the  other  party  cannot  move  for  a  new 
trial,  even  though  the  undersheriff  have  excluded 
from  the  consideration  of  the  jury  one  ground  of 
damage,  and  the  jury  have  found  a  verdict  against 
the  evidence.  As  this  cannot  be  done  directly,  so 
neither  can  it  indirectly.  The  court  accordingly  has, 
under  such  circumstances,  refused  to  grant  a  man- 
damus to  the  company  to  issue  a  fresh  precept.  (I) 

286.  Where  the  inquisition  is  defective,  it  may  be 
removed  by  writ  of  certiorari  into  the  Court  of 
Queen's  Bench,  and  there  quashed.  This  supposes 
that  the  writ  is  not  taken  away  by  statute,  (wi) 

\\.—Ofthe  Title. 

287.  Upon  the  amount  of  the  compensation  money 
being  fixed,  either  by  the  agreement  of  the  parties 

(k)  Reg.  V.  Sherif  of  Middlesex,  22  Law  Journ.  Q.  B.  14  ; 
5.  C.  3  Railw.  Cas.  396. 

(I)  Reg.  V.  Eastern  Counties  Railway  Covipaiiy,  21  Law 
Journ.  Q.  B.  271  ;  S.  C.  3  Railw.  Cas.  468. 

(m)  As  to  the  writ  of  certiorari,  see  Cap.  7,  post. 


212       Company  as  constituted  under  the  Act. 

or  by  the  verdict  of  the  jury,  it  is  then  for  the  land- 
owner to  make  out  his  title  to  the  satisfaction  of  the 
company.  If  he  fails  to  do  so,  (n)  the  company, 
under  the  usual  provisions  of  a  railway  act,  become 
entitled  to  pay  the  money  into  the  Bank  of  England. 
The  property  upon  this  is  made  to  vest  in  the  com- 
pany without  any  conveyance  from  the  owner,  the 
facts  amounting  to  a  statutory  conveyance,  (o) 

288.  Where  the  company  are  compellable  under 
their  act  to  purchase  certain  property,  which  is 
therein  described  as  "  the  property  of  A.  B.,"  this 
cannot,  it  should  seem,  be  construed  to  amount  to  a 
parliamentary  confirmation  of  the  party's  title,  so  as 
to  preclude  the  company  from  disputing  the  same, 
and  to  oblige  them  absolutely  to  pay  him  the  pur- 
chase money  whether  he  be  really  entitled  to  it  or 
not.  (p) 

VII. — Of  the  Conveyance. 

289.  A  good  title  to  the  land,  &c.  in  question 
being  made  out  to  the  satisfaction  of  the  company, 
there  comes  next  to  be  considered  the  conveyance. 
The  form  of  this  is  usually  prescribed  by  the  sta- 
tute, (q)     Where  a  party  is  unwilling,  &c.   to  con- 

(«)  Under  Lands  Clauses  Consolidation  Act  (8  Vict.  c.  18), 
promoters  in  such  case  empowered  to  execute  deed  poll,  where- 
upon property  made  to  vest  in  them.  See  act,  s.  75  and  s.  77, 
post,  A  pp. 

(o)  See  Bruce  v.  Willis,  11  A.  &  E.  463  ;  S.  C.  3  P.  cc  D. 
220. 

(p)  Peniieii  v.  Great  Watern  Railway  Compatiy,  1  Horn  & 
H.247. 

(g)  As  to  provisions  of  Lands  Clauses  Consolidation  Act 
(8  Vict.  c.  18)  on  this  point,  see  act,  s.  81,  post,  App. 


Compensation.  213 

vey,  (r)  the  statute  usually  empowers  the  company 
to  pay  the  compensation  money  into  the  Bank  of 
England.  The  effect  (r)  of  this,  under  the  usual 
provisions  of  a  railway  act,  is  to  vest  the  property 
in  the  company  as  absolutely  as  if  it  had  been  con- 
veyed by  the  owner,  and  so  to  dispense  with  the 
necessity  of  any  conveyance  by  the  latter.  (*) 

290.  If  the  owner  dies  before  making  any  con- 
veyance, or  before  the  payment  of  the  money  into 
the  bank,  his  heir  or  devisee  may  nevertheless  be 
compelled  to  convey  the  land,  inasmuch  as  it  is 
bound  by  the  prior  contract  or  assessment,  as  the 
case  may  be. 

291.  Where  in  such  a  case  the  land  is  left  to  de- 
scend to  infants,  or  is  devised  in  strict  settlement, 
&c.,  so  that  under  the  limitations  contained  in  the 
will  there  is  no  one  capable  of  making  a  conveyance 
to  the  company,  the  company  must  institute  a  suit  in 
chancery  in  order  to  obtain  a  conveyance,  (f)  And 
it  makes  no  difference  whether  there  has  been  an 

(?•)  See  Lands  Clauses  Consolidation  Act,  (8  Vict.  c.  18,) 
ss.  73,  76,  post,  App.,  as  to  this  point ;  promoters  of  railway  in 
such  case  empowered  to  execute  deed  poll,  whereupon  property 
made  to  vest  in  them  ;  see  ib.  s.  75  and  s.  77.  As  to  effect  of 
conveyance  by  parties  under  such  act,  see  ib.  s.  81 ;  and  of  deed 
poll  by  promoters,  ib.  s.  75  and  77.  Promoters  empowered  to 
purchase  interests  in  land,  purchase  whereof  omitted  by  mistake, 
ib.  s.  124  et  seq. 

(s)  See  Bruce  v.  Willis,  11  A.  &  E.  463  ;  S.  C.  3  P.  &  D. 
220. 

(()  Midland  Counties  Railway  Company y.  Oiwin,  22  Law 
Jour.  Ch.  209  ;  S.  C.  i  Coll.  74  ;  Midland  Counties  Railway 
Company  v.  Wescomb,  2  Railway  Cas.  211  ;  S.  C.  11  Sim.  57  ; 
Easter7i  Counties  Railway  Company  v.  Tufnell,  3  Railway  Cas. 
133. 


214        Company  as  constituted  under  the  Act. 

agreement  for  the  purchase  between  the  company 
and  the  deceased  owner,  or  the  value  has  been  as- 
sessed by  a  jury  under  the  compulsory  process  given 
by  the  act ;  in  either  case  the  deceased  owner  is  a 
vendor,  and  the  infant  heir,  &c.  a  trustee  within  the 
meaning  of  the  statute  1  Will.  4,  c.  60.  (u) 

VIII, — Of  the  Payment  of  the  Purchase  Money,  and 
the  entry  upon  Lands,  SfC. 

292.  In  treating  of  this  subject  it  is  proposed  to 
consider,  first,  the  time  ;  secondly,  the  mode ;  tliirdly, 
the  effect  of  payment ;  fourthly,  the  remedies  for  en- 
forcing such  payment ;  and,  lastly,  the  ulterior  dis- 
position  of  the  money  where  it  is  paid  into  the  bank. 

293.  First,  then,  of  the  time  of  payment.  The  pay- 
ment or  tender  of  the  sum  agreed  on  or  assessed (x) 
by  the  jury,  is  in  general  made  a  condition  prece- 
dent to  the  vesting  of  the  property  in  the  company, 
or  to  their  being  entitled  to  enter  thereupon.  Ac- 
cordingly, if  they  take  possession  of  the  property 
while  this  remains  undone  without  consent  of  the 
owner,  it  is  illegal,  and  entitles  the  proprietor  to 
apply  to  a  court  of  equity  for  relief,  (y)  In  case, 
however,  of  a  prior  existing  agreement  between  the 
parties  for  the  purchase  of  the  property  in  ques- 
tion, the  owner  can  not  in  general  require  to  have 

(ji)  Seenote(t),  p.  213. 

(i)  As  to  provisions  of  Ltnds  Clauses  Consolidation  Act 
(8  Vict.  c.  18)  on  this  point,  see  act,  s.  84,  et  seq.  post,  App. 
Promoters  liable  to  penaltj'  for  wilfully  entering  on  lands,  &:c. 
without  consent  of  owner  before  payment,  &c.  of  purchase  money, 
&c.,  see  ib.  s.  89. 

()/)  Robertson  v.  The  Great  Western  Railway  Company,  1 
Railw.  Cas.  459  ;  Jones  v.  The  Great  Western  Railway  Company, 
1  Railw.  Cas.  684. 


Compensation.  215 

the  purchase  money  paid  to  himself,  but  only  into 
the  court  to  which  the  application  is  made,  it  being  a 
case  of  specific  performance,  and  not  a  case  within 
the  act.(;:) 

294.  Secondly.  Of  the  mode  of  payment.  The 
proper  mode  of  payment  in  general  is  to  hand  over 
the  money  to  the  party  interested  in  the  premises. 
It  may,  however,  happen  that  this  party  is  out  of 
the  way,  or  labours  under  some  incapacity,  or  neg- 
lects or  refuses  to  convey  or  to  make  out  a  good 
title,  or  is  unable  so  to  do,  (a)  &c.  To  provide 
against  such  contingencies,  which  otherwise  might 
present  an  insuperable  obstacle  to  the  execution  of 
the  imdertaking,  a  power  is  usually  given  to  the 
company  in  any  such  case  to  pay  the  money  into  the 
Bank  of  England,  and  thereupon  the  property  is 
made  to  vest  in  them  just  the  same  as  in  case  of  an 
immediate  payment  to  the  owner.  ,  In  order  to 
entitle  themselves  to  exercise  this  power,  they  must 
follow  the  provisions  of  the  act  strictly.  (6)     But 

(s)  Hyde  V.  The  Great  Western  Railway  Company,  1  Railvv. 
Cas.  277. 

(a)  As  to  provisions  of  Lands  Clauses  Cousolidation  Act 
(8  Vict.  c.  18)  on  this  head,  see  act,  s.  69 — 79,  post,  App. 

(ft)  An  act  of  parliament  establishing  a  railway  company  pro- 
vided that,  if  the  owner  of  any  land  required  by  the  company 
should  refuse  to  accept  the  purchase  money  or  compensation 
awarded,  or  should  fail  to  make  out  a  title  to  such  land,  to  the 
satisfaction  of  the  company,  or  if  such  owner  should  be  out  of  the 
kingdom  or  not  be  to  be  found  or  be  unknown,  or  should  refuse 
to  convey  such  land,  &c.,  the  company  might  pay  the  purchase 
or  compensation  money  into  the  Bank  of  England  in  the  name  of 
the  accountant-general  of  the  Court  of  Chancery,  whereupon  all 
the  interest  of  the  owner  in  those  lands  should  vest  in  the  com- 
pany. By  subsequent  sections  the  company  were  to  give  notice 
to  the  parties  interested  of  their  intention  to  treat  for  lands ;  and. 


216       Company  as  constituted  under  the  Act. 

where  the  circumstances  of  a  case  are  such  as  evince 
an  intention  in  the  owner  to  set  the  company  at 
defiance,  this  is  clearly  a  case  within  the  above  pro- 
vision, and  the  company  are  consequently  justified 
in  paying  the  money  into  court ;  as,  for  instance, 

if  any  dift'erence  should  arise,  or  no  agreement  should  be  come 
to  respecting  the  lands  or  compensation  money  to  be  given  for 
them,  or  if  such  owner  should  by  reason  of  absence  be  incapable 
of  treating  for  them,  or  should  fail  to  disclose  or  prove  his  title  to 
them,  or  should  be  incapable  of  making  any  agreement  or  neces- 
sary conveyance,  the  amount  of  the  compensation  money  should 
be  settled  by  the  jury.  The  company  offered  one  A.,  who  was 
possessed  of  a  leasehold  interest  in  lands,  a  certain  sum,  and  oa 
his  refusing  to  accept  it,  had  the  amount  of  compensation  money 
assessed  by  a  valuation  jury.  After  the  verdict  had  been  delivered, 
A.'s  attorney  said  to  the  defendants,  "  you  shall  never  construct 
your  railway  until  you  come  to  some  arrangement  satisfactory  to 
A."  The  company,  however,  without  calling  on  the  plaintiff  to- 
make  out  his  titl^to  the  lands  in  question,  paid  the  compensation 
money  into  the  Bank  in  the  manner  prescribed  by  the  statute, 
and  commenced  constructing  the  railway  on  them,  whereupon 
the  plaintiff  brought  his  action  of  ejectment.  On  this  state  of 
facts,  Cresswell,  J.,  at  the  trial,  told  the  jury  that,  in  order  to 
entitle  the  company  to  pay  the  assessed  compensation  money 
into  the  Bank,  and  take  possession  of  the  plaintiff's  land,  they 
should,  after  that  assessment  was  made,  have  called  on  him  to 
make  out  his  title.  A  verdict  was  accordingly  given  for  the 
plaintiff,  v/ith  leave  reserved  to. the  defendants  to  move  the  court 
to  enter  it  for  them.  Upon  the  defendants  moving  in  pursuance 
of  that  leave,  the  court  upheld  the  ruling  of  the  learned  judge  at 
the  trial,  being  of  opinion  that  the  provision  empowering  the  com- 
pany to  pay  the  compensation  into  the  Bank  was  prospective, 
and  pointed  to  a  failure  to  make  out  a  title, ,&;c.  subsequently  to 
the  compensation  being  assessed  by  the  jury,  and  that  conse- 
quently the  company  ought'  to  have  called  on  the  plaintiff  after 
the  assessment  by  the  jury  to  make  out  his  title  to  the  land  ; 
Doe  d.  Hutchinson  v.  Mancliester,  Bury  and  Rosseiidale  liailuaif 
Company,  9  Jurist,  949. 


Compensation .  217 

where  an  act  comes  into  operation  reviving  an  old 
assessment,  and  the  next  day  a  provisional  order  of 
the  Court  of  Exchequer  is  obtained  to  pay  the 
money  into  the  bank,  and  yet  the  owner,  with  a 
knowledge  of  all  this,  lies  by  for  ten  days  after  the 
passing  of  the  act,  and  suffers  the  money  to  be  paid 
in  accordingly  ;  this,  it  seems,  is  reasonable  evidence 
for  the  jury  to  show  neglect  to  make  out  a  title,  and 
that  the  party  means  to  keep  the  company  at  arm's 
length  ;  it  consequently  justifies  the  latter  in  paying 
the  money  into  court,  (c) 

295.  So  likewise,  in  case  of  a  disputed  title,  the 
company  are  justified  in  paying  the  money  into 
court  ;  as  if,  after  an  agreement  for  the  purchase  of 
premises  between  the  company  and  the  supposed 
owner,  a  third  party  steps  in  and  disputes  the 
vendor's  title  to  sell  without  his  concurrence ;  tliis 
would  seem  to  be  a  case  where,  under  the  usual 
provisions  of  a  railway  act,  the  company  are  justified 
in  paying  the  money  into  court ;  and  where,  conse- 
quently, they  take  the  whole  interest  in  the  premises, 
notwithstanding  the  state  of  the  title,  (c?) 

296.  In  case  of  the  owner  refusing  or  being  unable 
to  convey,  &c.,  the  act  usually  empowers  the  com- 
pany to  order  the  money  to  be  paid  (e)  into  the  Bank 
of  England  in  the  name,  Skc.  of  the  accountant- 
general  of  the  Court  of  Chancery,  to  be  placed  to 

(c)  Doed.  Payne  v.  Bristol  and  Exeter  Railway  Cniii}ui>nj,2 
Railw.  Cas.  75  ;  S.  C.  6  M.  cV  W.  320. 

(d)  El'  parte  Issaitcliaitd,  3  Y.  &  Coll.  721.  See  also  judg- 
ment of  Alderson,  B.  in  Cator  v.  The  Croydon  Canal  Company, 
4  Y.  &  Coll.  405. 

(e)  See  Lands  Clauses  Consolidation  Act  (8  Vict.  c.  18),  s. 
76,  post,  App. 

L 


218       Company  as  constituted  under  the  Act. 

his  account  to  the  credit  of  the  parties  interested 
(describing  them  as  well  as  the  company  can).  To 
satisfy  this  provision  there  need  not  be  an  express 
order  of  the  company  to  pay  the  money ;  but  it  is 
enough  that  the  directors  give  the  order  ;  this  they 
may  do  through  the  medium  of  a  cheque  drawn  by 
the  directors  on  the  bankers  of  the  company,  ex- 
pressive on  its  face  of  the  trusts  on  which  it  is  given  ; 
as  where  two  directors  drew  a  cheque  payable  to 
the  other  party  or  bearer,  with  a  memorandum  on 
the  face  of  it  that  it  should  be  paid  into  the  Bank  of 
England  under  the  directions  of  the  agents  of  the 
company's  solicitor,  (y) 

297.  Assuming  the  payment  to  be  in  accordance 
with  the  provisions  of  the  act,  we  have,  thirdly,  to 
consider  its  effect  (g)  on  the  property.  A  railway 
act  usually  provides,  that,  on  payment  or  tender  of 
the  purchase  or  compensation  money,  either  to  the 
party  or  parties  interested  or  into  the  bank,  as  the 
case  may  be,  the  property  shall  vest  in  the  company, 
and  that  all  estates  tail,  estates  in  reversion  and 
remainder,  &c.  therein  shall  be  barred.  Where  all 
substantial  interests  in  the  premises  are  included  in 
and  covered  by  the  payment,  the  fact  of  a  dry  legal 
right  being  left  outstanding  is  no  bar  to  the  vesting 
of  the  entire  property  in  the  company. 

298.  Leaseholders  for  a  long  term  of  years,  but 
who  had  underlet  to  a  person  wlio  had  been  ex- 
pelled for  a  breach  of  covenant,  and  who  had  given 

(/)  Taylor  v.  Clemson,  2  A.  £c  E.  N.  S.  1030  j  S.  C.  2  G.  6c 
D.  346;  3  Railw.  Cas.  65. 

(g)  As  to  the  effect  of  conveyance  under  Lands  Clauses  Con- 
solidation Act,  (8  Vict.  c.  18)  and  as  to  interests  omitted  by  mis- 
take,  to  be  purchased,  see  ante,  p.  213,  n.  (?■). 


Compensation .  219 

up  the  lease,  but  had  executed  no  deed  of  surrender, 
agreed  with  the  company  for  the  sale  of  the  pre- 
mises ;  the  under-lessee  having  disputed  the  title  of 
the  parties  to  sell,  the  company  paid  the  money 
into  court :  it  was  held  that  the  whole  interest  in  the 
premises  vested  in  the  company  notwithstanding  the 
defective  surrender.  (/«)  So  where  a  person  inte- 
rested in  a  long  term  of  years  in  certain  property, 
but  in  regard  of  which  no  rent  vvas  reserved,  con- 
tracted by  mistake  to  sell  the  fee  simple  to  the  com- 
pany, it  was  held  that  the  reversioner  was  barred  as 
against  the  company,  and  that  the  transaction  was 
equivalent  to  a  sale  of  the  fee.  (i) 

299.  Fourthly.  Of  the  enforcing  payment  of  the 
compensation  money ;  and  herein,  first,  of  the  case 
where  the  owner  of  the  land,  ^-c.  is  entitled  to  receive 
the  money ;  second,  of  the  case  where,  according  to 
the  provisions  of  the  company's  act,  it  is  to  be  paid 
into  the  bank.  In  the  first  case,  where  there  is  an 
agreement  between  the  parties,  the  owner's  remedy 
must  of  course  be  upon  the  agreement.  If  recourse 
has  been  had  to  the  compulsory  process  given  by 
the  act,  then,  supposing  that  act  points  out  any  par- 
ticular remedy,  this  is  what  the  party  must  adopt ;  if 
not,  still  if  the  act  contains  the  ordinary  provision, 
making  the  verdict  of  the  jury,  and  the  consequent 
judgment  a  record,  the  proper  remedy  would  seem 
to  be  by  an  action  of  debt  upon  tlie  judgment;  (A;) 
though  a  mandamus   has  been  held  to  lie  in  a  like 

(/i)  Ex  parte  IssauchaiidS  Y.  &  C.  721. 
(i)  Ex  parte  Jones,  4  Y.  &  C.  466. 

(?c)  Corrigail  v.  London  and  Blackmail  Railway  Company,  5 
M.  &  Gr.  219  ;  S.  C.  21  Law  Jour.  C.  P.  216. 

L  2 


220       Company  as  constituted  under  the  Act. 

case.  (/)  In  such  action  the  plaintiff  ought,  it  seems, 
both  to  aver  and  prove  that  he  made  a  good  title  to 
the  satisfaction  of  the  company  and  was  ready  and 
willing  to  convey,  &c.,  or  what  is  equivalent  there- 
to. ()«)  He  must,  moreover,  show  a  default  in  pay- 
ment on  the  part  of  the  company  pursuant  to  the 
act.(n) 

300.  Even  where  the  act  speaks  of  certain  land 
(which  the  company  are  compellable  to  purchase) 
as  belonging  to  a  particular  party,  and  gives  to  the 
party  entitled  to  the  purchase  money  a  right  of 
action  for  the  same  in  default  of  payment  within  a 
specified  time  after  the  amount  is  ascertained  either 
by  the  agreement  of  the  parties  or  the  verdict  of  a 
jury  ;  yet  this  cannot  be  construed  as  amounting  to 
a  conclusive  admission  of  the  party's  title^,  so  as  to 
render  it  obligatory  upon  tlie  company  to  pay  the 
money  within  that  time  without  any  further  act  on 
the  part  of  the  other  side  to  show  that  he  has  some- 
thing to  convey  to  the  company  for  the  money.  (ii) 
Putting  the  most  favourable  construction  on  the 
words  that  they  can  possibly  bear  for  the  party  in- 
terested, they  cannot  go  beyond  this,  that  the  land  is 
prima  facie  to  be  considered  his  property  till  the 
contrary  is  shown,  so  as  to  dispense  with  the 
necessity  of  his  showing  a  title  in  the  first  instance  ; 
but  it  still  leaves  it  open  to  the  company  to  raise  the 

(i)  Rex  V.  Nottingham  Old  Water  Works  Company,  6  A.  & 
E.  355 ;  sed  qusere  the  authority  of  this  case  as  to  this  point. 
See  case  cited  in  preceding  note. 

(m)  See  declaration  in  Corrigal  v.  London  and  Biackicall 
Railway  Company,  ubi  supra. 

(n)  Penney  v.  Great  Western  Railway  Company,  1  Horn  & 
H.247. 


Compensation.  221 

question  by  their  pleadings,  whether  such  party  has 
any  title  or  not.  (o) 

301.  In  the  second  case,  if  the  company  refuse  to 
pay  the  money  into  the  bank  pursuant  to  their  act, 
the  party  interested  may  apply  to  the  Court  of 
Queen's  Bench  for  a  mandamus  to  compel  them  to 
do  so.  To  support  such  an  application,  however, 
the  party  must  cleai'ly  establish  that  the  case  is  one 
where,  pursuant  to  the  requisitions  of  the  act,  the 
money  ought  to  be  so  paid  in  ;  as,  for  instance, 
where  he  goes  upon  the  ground  of  his  inability  to 
make  out  a  title,  he  must  clearly  establish  that  he  is 
unable  to  do  so.  (p)  On  the  discussion  of  a  rule 
nisi  for  a  mandamus  in  this  latter  case,  the  propriety 
of  a  mandamus  to  compel  the  original  assessment  of 
the  compensation  cannot  be  questioned  ;  (q)  and  in 
default  of  an  affidavit  to  the  contrary,  the  regularity 
of  all  proceedings  essential  to  the  verdict  is  to  be 
presumed,  (q)  It  is  no  ground  for  refusing  the  ap- 
plication, that,  after  the  assessment,  &c.  and  during 
the  dispute  on  the  title,  the  period  limited  for  the 
exercise  of  the  company's  compulsory  powers  has 
expired,  (p). 

302.  So  a  party  may,  it  seems,  have  his  remedy  in 
equity,  where  a  company  being  bound  under  the  pro- 
visions of  their  act  to  pay  compensation  money  into 
the  court  of  chanceiy.  Sec.  instead  of  doing  so  retain 
it  in  their  own  hands,  for  the  company  cannot  in 
equity  be  allowed  to  place  themselves  in  a  better 

(o)  Pennei)  v.  Great  Western  Railway  Company,  1  Horn  & 
H. 247. 

(;;)  Reg.  v.  Deptford  Pier  Company,  8  A.  &  E.  910. 

(q)  See  Rex  v.  Nottingham  Old  Water  Works  Company,  6  A. 
&  E.  355. 


222       Company  as  constituted  under  the\Act. 

situation,  than  they  would  have  been,  if  they  had 
discharged  their  duty  under  the  act  of  parliament, 
or  to  alter  the  position   of  the  rightful   claimant. 
Now  had  the  company  chosen  to  act  as  they  ought 
to  have  done,  and  paid  the  money  into  the  court  of 
chancery,  that  court  would  have  become  the  trustee 
for  the  rightful  claimant ;  consequently  as  to  him, 
the  company  retaining  the  money  must  be  consi- 
dered as  his  trustee,  exactly  as  the  court  of  chancery 
would  have  been   if  the  money   had    been    depo- 
sited with  the  court.  (?•)     And  it  may  be  strongly 
questioned    whether   in    such   a  case,  which  starts 
with  the  proposition  that  one  side  is  cestui  que  trust 
and  the  other  trustee,  any  length  of  time  would  be 
a  bar  to  the  lawful  claimant,  it  being  admitted  that 
the  company  have  assets,  and  that  the  money  has 
not  been  paid,  but  remains  in  their  hands.     At  any 
rate  as  the  bar  from  lapse  of  time  proceeds  in  a 
court  of  equity  upon  the  laches  of  the  party  in  not 
claiming  sooner,  it  cannot  be  applicable  to  a  case,  in 
which  the  legislature  permits  a  bargain  with  an  un- 
ascertained person,   and  where   there  is  no  laches 
after  he  is  ascertained.     The  party  to  maintain  his 
suit  must  of  course  be  prepared  to  prove  that  he 
is  entitled  to  the  compensation,  (s) 

303.  Lastly,  Of  the  ulterior  disposition  of  the  com- 
pensation money,  where  it  is  paid  into  the  bank. 
The  cases  where  a  railway  act  usually  authorizes 
this  mode  of  payment,  are  as  we  have  seen  mainly 
reducible  to  two  :  first,  where  there  is  a  failure  to 
convey  or  make  out  a  title  to  the  satisfaction  of  the 

(7)  Judgment  of  Alderson,  B.  in  Cator  v.  Croydon  CanaL 
Company,  4  Y.  &  Coll.  419. 

(s)  Cator  V.  Croydon  Caiml  Company,  4  Y.  &  Coll.  405. 


Compensation.  223 

comjmmj,  &c.  ;  the  second,  where  the  party  in  pos- 
session has  a  limited  interest  only  in  the  premises,  or 
labours  under  some  incapacity,  &c.  In  the  former(t) 
case  the  act  usually  empowers  the  Court  of  Chan- 
cery, on  application  of  the  party  laying  claim  to  the 
money,  or  any  part  of  it,  to  make  the  requisite 
orders  touching  its  future  disposition,  providing  at 
the  same  time  that  the  party  in  possession  of  the 
property  at  the  time  of  the  purchase  by  the  com- 
pany shall  be  presumed  to  be  entitled  to  such 
money,  until  the  contrary  shall  be  shown  to  the 
satisfaction  of  the  court.  Under  the  above  provi- 
sion, where  the  right  to  the  money  is  uncontested, 
the  party  in  possession  would  seem  entitled  to  have 
the  money  paid  out  of  court  to  him  on  his  own  affi- 
davit of  title,  (m) 

304.  Where  there  are  several  parties  who  lay 
claim  to  a  share  of  the  money,  their  several  interests 
may  be  adjusted  on  petition  to  the  court ;  or  the 
court  will,  if  necessary,  direct  an  issue  to  ascertain 
both  who  are  the  parties  really  interested  in  the 
property,  and  the  proportionate  value  of  their 
several  interests,  {x) 

305.  Where  the  party  in  possession  is  under  any 
of  the  incapacities  (y)  contemplated  by  the  act,  &c.  the 
usual  provision  is,  that  the  money  shall  by  order  of 

(t)  As  to  provisions  of  Lands  Clauses  Consolidation  Act  (8 
Vict.  c.  18),  on  this  subject,  see  Act,  ss.  78,  79,  post,  App. 

(u)  Ex  parte  Grainge,  3  Y.  &c  Coll.  62  ;  see  also  n.  (a)  and 
n.  (6),  ibid.  66. 

(i)  Ex  pai-te  Issauchaud,  3  Y.  &  Coll.  721.  See  also  Ex 
parte  Gardner,  4  Y.  &  Coll.  503, 

(y)  See  Lands  Clauses  Consolidation  Act  (8  Vict.  c.  18), 
ss.  69,  70. 


224        Company  as  constituted  under  the  Act, 

the  Court  of  Chancery,  made  upon  petition  of  the 
party,  be  applied  either  in  discharge  of  some  bur- 
then incident  to  the  estate  of  that  j^artij,  or  in  the 
purchase  of  other  lands  to  be  settled  to  the  like  uses 
as  the  lands  taken  by  the  company,  and  that,  in  the 
interim  and  until  this  can  be  done,  the  money  may 
by  order  of  the  court,  upon  application  thereto,  be 
invested  in  the  funds,  &c.,  the  dividends  to  be  pay- 
able by  the  order  of  the  court  to  the  party  who 
would  for  the  time  being  have  been  entitled  to  the 
rents  and  profits  of  the  lands  to  be  purchased.  The 
court  would  seem  inclined  to  put  a  liberal  construc- 
tion on  the  superintending  powers  thus  conferred 
upon  them,  and  accordingly  to  sanction  by  virtue  of 
it  any  application  of  the  money,  which,  though  not 
strictly  within  the  words,  is  yet  substantially  in  ad- 
vancement of  the  intention  of  the  act.  Where  there- 
fore a  sum  of  money  is  in  court,  previously  to  its 
being  laid  out  in  lands  to  be  settled  to  the  like  uses, 
the  court  will  order  it  to  be  applied  in  new  erec- 
tions, (z)  So  where  an  opportunity  for  an  advan- 
tageous purchase,  beyond  the  amount  of  the  money 
in  court,  presents  itself,  the  court  will  lend  its  aid 
towards  the  accomplishment  of  such  purchase,  and 
accordingly  will  direct  the  extra  costs  to  be  paid  out 
of  the  fund  in  court,  (a)  And  a  tenant  for  life,  who 
has  redeemed  the  land  tax  before  the  passing  of  the 
company's  act,  will  be  permitted  to  reimburse  him- 
self out  of  the  proceeds  of  the  land  purchased  of 
him  by  the  company  (6). 

(z)  Ex  parte  Shaw,  4  Y.  &  C.  506. 
(o)  Ex  parte  Newton,  4  Y.  &  C.  518. 
(6)   Ei  parte  Nnrthwick,  1  V.  &  C.  166. 


Costs.  225 

IX.   Costs. 

306.  It  is  proposed  in  the  next  place  to  treat  of 
costs  (c)  incidental  to  the  taking  of  lands  for  the 
purpose  of  a  railway,  and  the  provisions  made  by 
the  different  railway  acts  on  this  subject.  Every 
railway  act,  it  is  clear,  ought  to  contain  a  series  of 
provisions  on  this  head,  calculated  to  afford  to  the 
owners  of  property  a  fair  and  reasonable  indemnity 
against  the  class  of  costs  in  question,  as  otherwise  it 
would  be  exposing  a  party  to  have  his  property 
diminished  by  reason  of  its  being  taken  from  him 
for  the  purposes  of  the  company.  Such  provisions 
accordingly  are  to  be  construed  liberally,  and  in 
favour  of  the  parties  whose  interests  they  are  in- 
tended to  protect.  In  considering  the  question  of 
costs,  it  is  proposed  to  take  1st,  the  simplest  case, 
where  only  the  ordinary  costs  attending  a  purchase 
are  in  question  ;  2ndly,  where  recourse  having  been 
had  to  the  compulsory  'process  provided  by  the  act 
for  ascertaining  the  amount  of  the  purchase  or  com- 
pensation money,  it  is  sought  to  recover  the  costs 

(c)  For  question  as  to  taxation  of  costs,  and  whether  agree- 
ment referring  to  costs  meant  to  regulate  only  the  description  of 
costs  to  be  borne  by  the  Company,  or  the  mode  of  ascertaining 
the  amount  also,  so  as  to  exclude  the  provisions  of  a  subsequent 
act  on  the  subject,  see  In  re  Great  Western  Railway  Company's 
Amendment  Act,  and  In  re  Thomas  Rhodes,  8  Jurist,  1109  ;  S.  C. 
23  Law  Journ.  Ch.  97  ;  3  Railw.  Cas.  516  ;  motion  under  sub- 
sequent act  for  order  of  reference  to  tax  bill  of  costs  refused  with 
costs,  on  the  ground  that  on  an  application  of  thatsort  the  court  had 
no  opportunity  of  considering  the  special  agreement,  nor  whether 
it  provided  any  mode  for  ascertaining  the  costs  or  not.  lb.  As  to 
taxation  of  costs  of  inquiry  under  Lands  Clauses  Consolidation 
Act  (8  Vict.  c.  18),  see  Act,  s.5'2,  post,  App. ;  same  as  to  costs  of 
conveyances,  see  ib.  s.  83. 

L  5 


226       Company  as  constituted  under  the  Act. 

thereby  occasioned  ;  Srdly,  where  the  money  having 
been  paid  into  the  hank,  the  costs  attending  its  sub- 
sequent disposition  are  in  dispute ;  4thly,  where 
the  company,  in  order  to  complete  their  title,  are 
necessitated  to  have  recourse  to  a  court  of  equity. 

307.  1st,  Where  a  railway  act  provides  that  "  the 
contract,  sale  and  conveyance"  {d)  shall  be  made  at 
the  expense  of  the  company,  these  words  must  it 
seems  be  construed  to  cover  the  costs  of  making  out 
the  title,  (e)  And  it  makes  no  difference  that  these 
costs  are  provided  for  in  express  terms  by  a  subse- 
quent act.  (e) 

308.  2dly,  Of  the  costs  incidental  to  the  holding  of 
the  inquisition,  &c.  {f)  In  considering  the  effects  of 
the  usual  provision  on  this  head,  it  may  be  proper  to 
show,  first,  in  what  cases  it  gives  costs ;  secondly,  to 
what  description  of  costs  it  applies.  First,  there  are 
three  cases  in  general  contemplated  by  the  above 
enactment,  first,  where  the  jury  shall  give  the  same 
or  a  greater  sum  than  the  company  have  previously 
offered ;  secondly,  where  the  verdict  of  the  jurj-^  is 
given  for  a  less  sum,  and  thirdly,  where,  by  reason 
of  absence  in  foreign  parts,  or  from  any  other  cause 
or  disability  not  provided  for  in  the  act,  any  person 
shall  be  prevented  from  treating  or  agreeing  as  con- 

(d)  As  to  prorisions  of  Lands  Clauses  Consolidation  Act  (8 
Vict.  c.  18),  on  subject  of  costs  of  conveyances,  &c.  see  act,  s.  82, 
post,  App. 

(e)  £i  "parte  The  Trustees  of  John  Addey's  Charity,  In  re 
The  London  and  Greenwich  Railway  Company,  3  Railw.  Cas. 
119  ;  S.  C.  3  Hare,  22. 

(/)  As  to  provisions  of  Lands  Clauses  Consolidation  Act 
(8  Vict.  c.  18),  on  subject  of  costs  of  inquiry,  see  act,  ss.  51 — 
53,  post,  App. 


Costs.  227 

templated  by  the  act.  This  third  head  does  not 
comprehend  the  case  of  a  simple  nonagreement,  on 
the  ground  that  the  company  will  not  treat  or  agree, 
but  some  cause  or  disability  independent  of  the  mere 
agreement  of  the  parties  themselves.  Hence  it  fol- 
lows, that  a  party  who  himself  enforces  the  proceed- 
ings before  the  sheriff's  jury,  in  default  of  the  com- 
pany doing  so,  cannot  claim  his  costs  under  the 
above  provision,  (g) 

309.  The  costs,  yb?"  which  the  above  provision  pur- 
ports to  jjrovide,  in  general,  are  those  of  summoning 
and  returning  the  jury,  taking  the  verdict,  and  the 
summoning  and  attendance  of  the  witnesses.  (A) 
These  words  cannot,  it  seems,  be  taken  to  include 
the  general  costs  of  the  inquisition,  such  as  solicitor's 
charges  for  letters  and  attendances,  sums  paid  to 
surveyors  for  plans  or  for  making  valuations,  fees 
of  counsel,  costs  of  drawing  briefs  and  the  like. 
And  although  the  clause  giving  the  jury  process, 
and  regulating  the  inquiry,  enacts,  that  in  such  in- 
quiry the  party  claiming  compensation  shall  be 
deemed  plaintiff,  and  entitled  to  the  same  rights  and 
privileges  as  plaintiffs  in  action  at  law,  yet  this  does 
not  carry  the  party's  right  to  costs  any  further,  in- 
asmuch as  it  must  be  understood  as  intended  simply 
to  regulate  the  course  of  the  proceedings,  to  remove 
doubts  concerning  the  right  to  begin,  and  to  show 
in  other  respects  how  the  inquisition  should  be  con- 
ducted, (i)      But   where    the  act  provides  for  the 

(g)  Corrigall  v.  The  London  and  Blackmail  Railuay  Com- 
pany, 21  Law  Journ.  C.  P.  209  ;  S.  C.  5  M.  &  Gr.  219.  See 
further  as  to  right  to  costs,  Ex  parte  Turner,  1  W.  W.  &  H.  305. 

(fe)  See  Lands  Clauses  Consolidation  Act,  s.  52. 

(i)  Rex  V.  Gardner,  6  A.  &  E.  112;  Reg.  v.  The  Sheriff  of 
Warwickshire,  2  Railw.  Cas.  661. 


228       Company  as  constituted  under  the  Act. 

costs  not  only  of  summoning  and  returning  the  jury, 
&c.  but  also  of  the  inquest,  those  words  would  it 
seems  be  sufficiently  large  to  carry  the  general  costs 
of  the  inquiry.  {¥) 

310.  Sdly,  Of  the  costs  incidental  to  the  subsequent 
disposition  (/)  of  money  which  has  been  paid  into  the 
bank  under  the  provisions  of  a  railway  act.  There 
are  we  have  seen  two  cases  in  which  it  is  usually 
provided  by  a  railway  act  that  the  money  shall  be 
paid  into  court,  first,  where  the  title  is  in  dispute, 
&c. ;  second,  where  the  party  in  possession  of  the 
property  at  the  time  of  the  purchase,  &c.  is  under 
some  disability.  Although  in  the  former  case  the 
court  are  not  expressly  empowered  to  give  costs, 
yet  they  may,  it  seems,  do  so  under  the  general 
power  vested  in  them  under  the  usual  provisions  of 
a  railway  act  in  cases  of  disputed  titles,  viz.  that  of 
making  any  order  in  the  premises  that  they  think 
equitable  or  just,  {m)  And  clearly  they  must  be 
taken  to  have  a  jurisdiction  for  this  purpose  (which 
it  is  accordingly  their  duty  to  exercise,  unless  a 
special  case  is  made  out),  where  a  railway  act,  after 
providing  for  cases  of  disability,  goes  on  to  enact 
that  in  other  cases  of  the  purchase  money  being  paid 
into  court  under  the  act,  it  shall  be  lawful  for  the 
court  to  order  the  reasonable  expenses  of  any  party 
or  parties  in  procuring  the  same  to  be  paid  out  of 
court,  together  with  the  necessary  costs  of  obtaining 
the  proper  orders,  to  be  paid  by  the  company.    Under 

{k)  Rex  V.  The  Justices  of  the  City  of  York,  1  A.  &  E,  828. 
But  costs  of  surveyors  as  such  do  not  come  under  this  head. 

(i)  As  to  provisions  of  Lands  Clauses  Consolidation  Act 
(8  Vict.  c.  18),  on  subject  of  costs  in  cases  of  money  deposited, 
see  act,  s.  80,  post,  App. 

(m)  See  Ex  parte  Angell,  4  Y.  &  C.  496. 


Costs.  229 

the  above  provision  accordingly,  where  a  party  ap- 
plied to  have  paid  over  to  him  the  residue  of  certain 
purchase  money,  which  had  been  reserved  in  court 
to  await  the  decision  of  contested  claims,  {n)  and  to 
which  he  was  rightfully  entitled,  the  company  were 
held  liable  to  pay  the  costs  of  the  application. 

311.  The  usual  provision  in  the  second  case  we 
have  already  had  occasion  to  notice.  It  obviously 
involves  various  questions  about  costs,  viz.,  (1st,) 
about  the  costs  of  the  interim  investment  of  the 
money  in  the  funds,  and  of  the  cepplication  for  that 
purpose,  &c.  ;  (2ndly,)  of  the  jxtyment  of  the  divi- 
dends of  those  funds,  and  the  corresponding  applica- 
tion, &c. ;  (3rdly,)  of  the  permanent  investment,  and 
the  application  for  that  purpose,  &c.  First,  then, 
where  the  act  gives  the  "  expenses  of  all  purchases 
to  be  made  by  virtue  of  the  act ;  this  has  been  held 
to  include  the  expenses  occasioned  by  the  interim  in- 
vestment in  the  funds,  (o)  So  where  the  act  speaks 
of  the  expenses  of  the  reinvestment  of  the  purchase- 
money  in  land,  or  other  disposition  of  the  same,  the 
company  have  been  held  liable  to  pay  the  costs  of 
the  interim  investment,  (p)  But  where  the  act  speaks 
simply  of  costs,  in  consequence  of  the  purchase,  {q) 
or  of  the  costs  of  such  purchases  (V)  (thereby  mean- 
ing the  ultimate  purchases  of  lands  to  be  settled  to 
the  like  uses),  or  of  the  expenses  of  all  purchases 

(n)  E.T  jjorte  Gardiner,  re  The  Eastern  Counties  Railway  Com' 
pany,  3  Railw.  Cas.  117. 

(o)  Ex  parte  Bishop  of  Durham,  3  Y.  &  C.  690  ;  Ex  parte 
Bishop  if  Ely,  ibid.  691,  n.  (ft)  ;  sed  quaere;  see  n.  (s),  post, 
p.  230. 

(p)  Ex  parte  Otisbw,  1  Y.  &  C.  553. 

(g)  Ex  parte  Hirst,  4  Y.  &  C.  468. 

(r)  Ex  parte  Taylor,  1  Y.  &  C.  229. 


230        Company  as  constituted  under  the  Act. 

from  time  to  time  to  be  made  in  pursuance  of  the 
act,  and  of  the  order  sanctioning  such  purchases,  (5) 
this  has  been  held  not  to  carry  the  costs  in  question. 

312.  (2ndly.)  As  to  the  costs  of  the  payment  of 
the  dividends  of  the  stock,  and  the  application  for 
that  purpose.  Where  an  act  empowered  the  court 
to  order  the  reasonable  costs,  &c.  of  the  investment 
and  reinvestment,  together  with  the  necessary  costs, 
&c.  of  obtaining  the  proper  orders,  and  of  all  other 
proceedings  for  such  purposes,  and  for  the  payment 
of  the  dividends,  this  was  held  to  embrace  the  costs 
of  the  order  for  payment  of  the  dividends,  but  not 
the  costs  of  the  payment,  (t) 

313.  (3rdly.)  As  to  the  costs  of  the  ultimate  in- 
vestment of  the  purchase  money,  &c.  These  would 
clearly  be  included  under  the  terms  of  an  act,  which 
speaks  of  the  expenses  of  all  purchases  to4}e  made 
by  virtue  of  the  act.  (m)  So,  notwithstanding  an 
act  make  express  provision  for  costs  only  in  cases 
where  the  purchase  money,  &c.  is  to  be  laid  out  in 
the  purchase  of  land  to  be  settled  to  the  like  uses,  a 
party  may  yet  claim  under  it  the  costs  of  an  appli- 

(s)  Ji^x  parte  Molynem,  in  re  Manchester  and  Liverpool  Rail- 
way Company,  9  Jurist,  786,  cited  post,  p.  231.  See  also  Ex  parte 
Cooke,  in  re  Liverpool  and  Manchester  Railway  Company,  3 
Railw.  Cas.  136. 

(t)  Ex  parte  Athoi-pe,  3  Y.  ik  C.  396;  see  also  n.  (a),  ibid. 
See  also  Mitchell  v.  Newell,  in  re  Manchester  and  Leeds  Railway 
Act,  3  R.  Cas.  p.  515,  where,  upon  construction  of  the  157th  sec- 
tion of  the  Manchester  and  Leeds  Railway  Act,  it  was  held,  that 
costs  of  payment  of  dividends  were  not  to  be  borne  by  the  com- 
pany. 

(u)  See  Ex  parte  Bishop  of  Durham,  3  Y.  &  C.  690.  But 
see  In  re  London  Bridge  Acts,  13  Sim.  176.  There  A.  being  a 
tenant  for  life  of  an  estate  with  remainder  to  his  sons  succes- 
sively in  tail  male,  had  entered  into  an  agreement  with  B.  by 


Costs.  231 

cation  to  have  such  money  applied  in  the  redemption 
of  the  land  tax,  &c.  as  being  a  case  within  the  spirit 
and  meaning  of  the  act  (x)  ;  and  the  same  of  an  ap- 
plication to  have  the  money  applied  in  the  discharge 
of  incumbrances.  (?/)  Where  the  purchase  money, 
&c.  is  not  invested  at  once,  but  piecemeal,  it  is  dis- 
cretionary with  the  court  to  allow  or  not  the  costs  of 

which  it  was  stipulated  that  A.  should  procure  an  act  of  parlia- 
ment to  enable  him  to  sell  the  estate  to  B.,  and  that  B.  should 
bear  all  the  expenses  incident  to  and  consequent  upon  his  pro- 
posal to  purchase  the  estate,  together  with  the  expense  of  obtain- 
ing the  act,  of  preparing  the  abstract,  and  showing  a  title  to  the 
estate,  and  of  and  about  making  and  completing  the  sale  and 
conveyance  to  him,  together  with  the  expense  of  the  agreement 
and  all  other  expenses  whatsoever  of  A.,  in  consequence  of  the 
sale,  or  arising  out  of  or  in  anywise  relating  thereto,  or  to  the 
proposal  of  B.  A,  accordingly  obtained  an  act  for  the  sale 
of  the  estate  to  B.,  which  directed  the  purchase  money  to  be 
invested  in  lands  to  be  settled  to  the  same  uses  as  the  estate  stood 
limited  to.  It  was  held  that  B.  was  not  bound  to  pay  the  ex- 
penses of  the  investment. 

(x)  Ex  parte  Northwick,  1  Y.  &  C.  166. 

(y)  Ex  parte  Traford,  2  Y.  &  C.  522.  And  an  infant  tenant 
in  tail,  who,  on  coming  of  age,  barred  the  entail  of  the  money  in 
the  bank,  has  been  allowed  his  costs  of  applying  to  the  court  to 
have  the  money  paid  over  to  him. —  Ex  parte  Marshall,  in  re 
Great  Western  Railway  Company,  1845. 

But  upon  the  same  company's  acts,  it  has  been  held  that  the 
company  are  not  liable  for  the  costs,  &c.  attendant  upon  the 
obtaining  the  compensation  money  out  of  court  for  the  purpose 
of  erecting  a  new  vicarage  house,  though  the  original  act  autho- 
rized the  house  being  built  with  the  money.  Ex  parte  Madon  in 
re  Great  Western  Railway  Company,  9  Jur.  74.  And  where  an 
act  spoke  of  the  expenses  of  all  purchases  in  pursuance  of  the  act, 
and  of  the  necessary  orders  for  that  purpose,  it  was  held  not  to 
apply  to  the  costs  of  a  petition  to  have  a  portion  of  the  purchase 
money  in  the  bank  paid  out  of  court,  and  the  residue  invested 
in  stock.  Ex  parte  Molyneux,  in  re  Manchester  and  Liverpool 
Railway  Company,  9  Jur.  786, 


232        Company  as  constituted  tinder  the  Act. 

the  successive  investments,  &c.  necessary  for  that 
purpose  ;  but  in  general  the  court  seem  inclined  to 
limit  the  allowance  to  two.  (m)  Supposing,  however, 
that  the  purchase  money  is  very  large,  the  costs  of 
a  third  reinvestment  will,  it  seems,  be  allowed.  (?j) 

314.  Assuming  that  a  railway  act  makes  pro- 
vision for  the  costs  of  the  reinvestment  of  the  pur- 
chase money,  &c.,  it  remains  to  be  considered  what 
costs  are  included  in  the  inovision.  The  costs  of  the 
master's  report,  as  to  the  title  of  the  lands  to  be 
settled  to  the  like  uses,  would  seem  to  be  so.  Ac- 
cordingly a  court  will,  on  the  construction  of  the 
general  clauses  in  i*ailvvay  acts,  fix  the  company 
with  the  above  costs,  (o)  But  extraordinary  costs, 
occasioned  by  the  peculiar  nature  of  the  proposed 
reinvestment,  cannot,  it  seems,  be  taken  to  fall 
imder  the  provision  in  question ;  as,  for  instance, 
where  a  contract  was  made  for  a  purchase  beyond 
the  amount  of  the  money  in  court,  and  it  was 
arranged  that  the  excess  of  costs,  occasioned  by  the 

(m)  Ex  parte  Provost,  &;c.  of  Eton  College,  3  Railw.  Cas.  271  ; 
S.  C.  6  Jur.  908  ;  in  Ex  parte  Trustees  of  Waste  Lands  of  Box- 
moor,  in  re  Birmingham  Railway  Company,  costs  of  two  pur- 
chases were  allowed  ;  8  Jur.  307  ;  S.  C.  3  Railw.  Cas.  513. 

(n)  In  re  Saint  Katherine's  Dock  Company,  3  Railw.  Cas. 
514. 

(a)  Ex  parte  Marsh,  5  Jur.  502,  a.d.  1841.  And  under  the 
act  enabling  the  corporation  of  the  Trinity  House  to  purchase 
property,  and  in  certain  cases  to  pay  the  purchase  money  into 
court  to  be  laid  out  in  stock  for  the  benefit  of  the  parties  entitled, 
(the  act  providing  that  the  "  costs  of  the  investment  of  the  pur- 
chase money,  &c.  should  be  paid  by  the  corporation,")  the 
broker's  commmission  on  the  purchase  of  stock  was  held  to  be  a 
part  of  the  costs  of  investment  to  be  borne  by  the  corporation  ; 
In  re  stat.  6  8;  7  Will.  4,  Ex  parte  Corporation  of  Trinity 
House,  3  Hare,  95. 


Costs.  233 

larger  purchase,  should  be  secured  by  a  charge  on 
the  newly  purchased  property,  the  master  having 
reported  against  this  contract,  and  exceptions  to  his 
report  having  been  taken  and  allowed,  the  court  dis- 
allowed as  against  the  company  all  costs  occasioned 
by  the  peculiarity  of  the  contract  including  the  costs 
of  the  exceptions.  (^;) 

315,  It  is  proposed  to  speak  in  the  last  place  of 
extraordinary  costs  incidental  to  those  cases  where 
the  company,  in  order  to  complete  their  title,  are 
obliged  to  go  into  a  court  of  equity,  such  as  the 
costs  of  a  suit  necessarily  instituted  to  procure  a 
conveyance  of  the  legal  estate,  the  expenses  of  a 
reference  to  a  master  to  settle  conveyances,  and  the 
like.  These  costs  must  be  borne  by  the  party  who 
occasions  the  necessity  for  them.  Where  therefore 
the  owner  of  property,  after  agreeing  with  the  com- 
pany for  the  purchase,  died,  leaving  it  to  descend  to 
infants,  it  was  held  that  the  costs  of  a  suit,  which 
the  company  were  necessitated  to  institute,  in  order 
to  procure  a  conveyance  of  the  legal  estate,  must 
be  defrayed  out  of  the  purchase  money,  (q)  And 
the  same  where  a  party  died,  having  devised  all  his 
estates  in  strict  settlement ;  (r)  and  it  was  held  to 
make  no  difference  that  an  interval  of  three  years 
had  elapsed  between  the  date  of  the  agreement  and 
the  death  of  the  deceased,  no  steps  having  been 
taken  by  either  party  to  complete  the  purchase,  (s) 

(p)  Ex  parte  Newton,  4  Y.  &  C.  518. 

(9)  The  Midland  Counties  Railway  Company  v.  Wescomh,  2 
Railw.  Cas.  211;  S.  C.  11  Sim.  57. 

(r)  The  Eastern  Counties  Railway  Company  v.  Tuffnell,  3 
Railw.  Cas.  133. 

(s)  Ibid. 


(     234     ) 


Sect.  3. — Of  the  Company  viewed  in  its  Internal 
Relations. 

Sub-Sect.  I. — Of  the  Individual  Shareholders. 

II. — Of  the  General  Meetings  of  the  Company. 
III.— Of  the  Directors. 
IV. — Of  the  Officers,  Servants,  &c. 

v.— Of  Bye  Laws. 
VI.— Of  Registration. 
VIL— Of  the  Books,  Records,  &c.  of  the  Company. 


Sub-Sect.  1. — Of  the  Individual  Shareholders. 

1.  How  a  party  may  become  a  shareholder. 

2.  Of  the  rights,  duties  and  liabilities  of  shareholders. 

3.  How  a  party's  character  of  shareholder  may  be  determined. 

316.  1.  How  a  party  may  become  a  shareholder. 
In  general  there  are  two  ways  in  which  a  party  may 
become  a  shareholder,  (a)  viz.  either  by  subscription 
or  transfer.  A  bona  fide  transfer  of  scrip,  [b)  though 
prior  to  the  passing  of  the  act,  is,  it  seems,  so  far 
effectual  for  this  purpose,  as  to  give  a  right  to  be  re- 
gistered upon  the  passing  of  the  act ;  so  likewise  a 
transfer  of  shares  from  an  original  subscriber  posterior 
to  the  passing  of  the  act,  but  prior  to  the  sealing  of 
the  register  of  the  proprietors  agreeably  to  the  act,(c) 

(a)  As  to  who  are  shareholders  within  the  meaning  of  Com- 
panies Clauses  Consolidation  Act,  8  Vict.  c.  16,  see  act,  s.  3, 
post,  App.,  and  s.  8,  ib. 

(6)  See  ante,  p.  45  et  seq.,  as  to  transfer  of  scrip,  &c.  before 
passing  of  act. 

(c)  See  Sheffield,  Ashton-under-Lnne  and  Manchester  Rail- 
way Compariy  v.  Woodcock,  2  Railw.  Cas.  522 ;  S.  C.  7  M.  & 
W.  574. 


I 


Of  the  Individual  Shareholders.  235 

although  the  transferror  be  never  registered  as  a 
proprietor.  But  a  party  claiming  in  the  latter  way, 
viz.  by  transfer,  must  in  general,  in  order  to  entitle 
himself  to  the  privileges  of  a  shareholder,  procure 
himself  to  be  registered  under  the  act.  (d) 

317.  2.  Of  the  rights,  duties  and  liabilities  of  the 
individual  shareholders.  Under  the  ordinary  pro- 
visions of  a  railway  act,  these  are  mainly  such  as 
might  fairly  be  expected  from  the  relation  in  which 
they  stand  to  the  company,  the  former  being  the 
contributors  to  the  joint  stock  of  money  which  is 
entrusted  to  the  management  and  disposal  of  the 
latter,  in  order  to  the  obtaining  a  profit  for  the 
benefit  of  the  individual  contributors.  The  indi- 
vidual subscriber  accordingly,  while  he  is  bound  to 
pay  the  amount  of  his  subscription,  or  such  part  of 
it  as  may  from  time  to  time  be  required  for  the  pur- 
poses of  the  act.  has  at  the  same  time  a  right  to 
insist  on  the  joint  stock,  composed  of  such  subscrip- 
tions, being  applied  to  the  purposes  for  which  it  is 
so  entrusted,  and,  in  case  of  any  surplus  profits 
being  thereby  produced,  to  share. in  those  profits 
according  to  the  proportion  in  which  he  has  con- 
tributed to  the  capital  stock  of  the  company.  For 
the  better  enabling  him  to  enforce  the  above  rights, 
he  is  in  general  empowered  by  the  act  to  be  present 
at  and  take  a  part  in  the  deliberations  of  all  general 
meetings  of  the  company,  and  to  vote  in  the  deter- 
mination of  all  questions  thereat,  &c. 

318.  The  above  obligation,  viz.  that  of  paying 
the  amount  of  his   subscription  according  to    the 

(rf)  See  Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16, 
s.  15,  post,  App.,  and  ss.  18,  19,  ib. 


236        Company  as  constituted  under  the  Act. 

provisions  of  the  act,  is  the  sole  one,  it  may  be  re- 
marked, that  is  ordinarily  incidental  to  the  character 
of  a  shareholder,  the  shareholders  being  distinct  per- 
sons from  the  corporate  body,  and  therefore  being 
no  more  responsible  for  the  acts  of  the  company  than 
an  utter  stranger,  unless  indeed  where  a  direct  per- 
sonal interference  in  the  concerns  of  the  company  can 
be  brought  home  to  them.  There  is  however  one 
case  where  the  Companies  Clauses  Consolidation 
Act  (e)  gives  creditors  of  a  company  established 
under  that  act  a  direct  remedy  against  the  share- 
holders, viz.,  where  execution  having  been  issued 
against  the  property  or  effects  of  the  company  suffi- 
cient cannot  be  found  whereon  to  levy,  in  this  case 
the  creditor  is  empowered  by  the  above  act  to  issue 
execution  against  any  of  the  shareholders  to  the 
extent  of  their  shares  respectively  in  the  capital  of 
the  company  not  then  paid  up.  If  by  means  of  such 
execution  any  shareholder  is  made  to  pay  more  than 
the  amount  then  due  from  him  in  respect  of  calls,  he 
is  forthwith  to  be  reimbursed  such  additional  sum 
by  the  directors  out  of  the  funds  of  the  company. 

319.  3.  Of  the  determination  of  a  party's  cha- 
racter as  shareholder.  In  general  a  shareholder 
cannot  put  oft"  his  character  as  such  in  any  other 
way  than  that  pointed  out  by  the  act,  viz.  by  a 
transfer,  accompanied  with  all  the  formalities  pre- 
scribed by  the  legislature.  Even  where  a  party, 
during  the  progress  of  the  bill  for  the  formation  of 
a  company,  and  before  it  is  yet  passed  into  an  act, 
expressly  renounces  before  the  committee  all  further 
connection  with  the  undertaking,  and  procures  his 
name  to  be  omitted  out  of  the  act  in  consequence, 
(e)  See  ss.  36,  37,  post,  App. 


General  Assemblies  of  the  Company.         237 

yet  this  cannot  have  the  effect  of  discharging'him 
from  his  engagement  as  a  subscriber,  and  its'*  inci- 
dental obligations,  at  least  where  it  is  done  without 
the  consent  of  the  rest  of  the  subscribers  (/). 


Sub-Sect.  2. — Of  the  General  Assemblies  of  the 
Comjjany.  (g) 

320.  There  are  several  points  that  here  present 
themselves  for  consideration.  1st,  as  to  the  mode 
of  convening  meetings  ;  2ndly,  as  to  the  time  ;  3dly, 
as  to  the  persons  entitled  to  vote  ;  4thly,  as  to  the 
mode  of  voting ;  5thly,  as  to  the  number  of  pro- 
prietors requisite  to  constitute  a  valid  meeting ; 
6thly,  as  to  the  powers  of  general  assemblies.  With 
regard  to  the  five  first  points,  it  may  be  remarked 
that  the  requisites  of  the  company's  act  in  the  above 
respects  are  intended  to  operate  as  so  many  safe- 
guards for  the  interests  of  the  general  body  of  the 
proprietors,  and  therefore  they  must  be  observed  in 
all  essential  respects,  (h)  in  order  to  give  validity  to 
a  meeting.  (/')  Prima  facie,  however,  a  compliance 
with  the  above  requisites  is  to  be  presumed  ;  and 
therefore  it  lies  upon  the  company,  if  they  seek  to 

(/)  Kidwelly  Canal  Company  v.  Rahy,  2  Price,  93. 

(w)  As  to  the  provisions  of  the  Companies  Clauses  Consolida- 
tion Act  on  this  point,  see  act,  ss.  66—80,  post,  App. 

(h)  As  to  how  far  provisions  of  act  touching  the  holding  of 
special  general  meetings  imperative  or  only  directory,  so  as  to 
admit  of  being  dispensed  with  under  particular  exigencies  of  the 
society,  see  Foa  v.  Harbottle,  2  Hare,  495. 

(i)  See  ante,  pp.  70,  71. 


238        Company  as  constituted  under  the  Act. 

avail  themselves  of  any  irregularity  in  those  respects, 
to  give  strict  proof  of  the  same.  (A;) 

■321,  A  meeting  is  not  to  be  deemed  invalid, 
although^  to  make  up  the  requisite  number  of  share- 
holders, the  votes  of  certain  parties  must  be  taken 
into  account/ who  have  taken  shai"es  for  the  benefit 
of  the  company,  and  upon  a  secret  understanding 
that  they  are  to  be  exonerated  from  all  personal 
liability  hi  respect  of  them.(^) 

322.  Gthly.  Of  the  ^oroers(?«)  of  general  meetings. 
1st.  In  the  general  assembly  of  subscribers  is  vested 
the  entire  legislative  power  ;  2ndly,  the  appoint- 
ment of  directors  ;  3rdlj-,  the  supreme  control  and 
management  of  the  affairs  of  the  company  gene- 
rally ;  and  4thly,  the  power  of  ascertaining  and 
determining  who  are  legitimate  members  of  the  com- 
pany, &c.  As  necessarily  incident  to  the  above 
power  of  appointing  directors,  they  must  likewise, 
it  is  conceived,  be  taken  to  have  that  of  removing 
any  director  for  reasonable  cause,  and  this  with- 
out any  express  grant  conferring  on  them  such 
power. (?z) 

323.  From  this  brief  sketch  of  the  powers  of  a 
general  meeting,  it  would  seem  to  follow  that  ordi- 
narily, where  the  subscribers  are  dissatisfied  with 
the  management  of  the  company's  concerns,  or  the 
conduct  of  the  governing  body,  the  proper  tribunal 
to  which  to  appeal  in  the  first  instance  is  a  general 

(k)  See  ante,  p.  71. 

(<)  See  ante,  p.  41. 

(ni)  As  to  what  powers  of  Company  not  exercisable  by  di- 
rectors under  Companies  Clauses  Consolidation  Act,  see  act, 
s,  91,  post,  App. 

(n)  2  Kyd  on  Corporations,  50. 


General  Assemblies  of  the  Company.        239 

meeting,  (o)  Though,  if  the  company  is  in  such  a 
state  of  disorganization  as  virtually  amounts  to  a(p) 
tlissolution  of  the  company,  or  the  dissentient  par- 
ties, after  making  all  due  efforts  on  their  part  to  set 
the  proprietors  in  motion,  and  to  procure  a  meeting 
to  be  convened,  cannot  succeed  in  so  doing,  that 
may  justify  them  in  carrying  the  matter  into  a  court 
of  justice. 


Sub-Sect.  3. — Of  the  Directors,  {q) 

324.  We  have  to  treat  in  the  next  place,  of  the 
executive  council  or  directors  of  the  company,  and 
herein,  1st,  of  the  mode  of  their  appointment  ;  2nd, 
of  their  qualification  ;  3rd,  of  their  number  ;  4th,  of 
their  tenure  of  office;  5th,  of  their  remuneration; 
6th,  of  their  powers,  duties,  and  responsibilities. 

(o)  See  judgment  of  Tindal,  C.  J.  in  London  and  Brighton 
Railway  Company  v.  Wilson,  6  Bing.  N.  C.  139;  and  of  Den- 
man,  C.  J.  in  Reg.  V.  Eastern  Coiuiiies  Railway  Company,  10  A. 
&  E.  549.  In  the  case  of  the  alleged  misconduct  of  a  director  of 
an  insurance  company,  the  court  refused  to  interfere  by  con- 
tinuing an  injunction  ;  the  deed  by  which  the  company  was  con- 
stituted giving  the  plaintiffs,  who  were  directors,  powers  of  regu- 
lation, of  which  they  had  not  availed  themselves.  Ellison  v. 
Bignold,  2  J.  &  W.  503. 

(p)  See  judgment  of  Vice-Chancellor  in  Foss  v.  Harbottle, 
2  Hare,  461. 

{q)  As  to  the  provisions  of  the  Companies  Clauses  Consoli- 
dation Act  (8  Vict.  c.  16)  on  the  subject  of  the  proceedings  of 
the  directors  of  railway  companies,  and  more  particularly  of  the 
manner  of  their  entering  into  contracts  on  behalf  of  the  Com- 
pany, and  of  the  effect  of  any  informality  in  their  appointment, 
&c.  as  such,  see  act,  ss.  92 — 99,  post,  App. 


240       Company  as  constituted  under  the  Act. 

825.  1st.  As  to  the  mode  of  appointing  directors. (r^ 
The  usual  provision  on  this  head  is,  that  they  shall 
be  chosen  by  the  proprietors  at  a  general  meet- 
ing of  the  company.  If,  pending  his  term  of  ser- 
vice, a  director  dies,  resigns,  or  otherwise  vacates 
his  office,  or  ceases  to  be  a  director,  the  remaining 
directors  usually  have  a  power  given  them  of  sup- 
plying the  vacancy. 

326.  2dly.  A  railway  act  usually  requires  that  a 
party,  in  order  to  be  eligible  (s)  for  a  director,  shall 
be  possessed  of  a  certain  number  of  shares  in  the  un- 
dertaking, and  also  that  he  shall  not  hold  any  office 
or  place  of  trust  under,  or  be  concerned  in  any  con- 
tract with,  the  company.  This  latter  brancli  of  the 
clause  only  applies  to  contracts  made  with  the  com- 
pany in  the  execution  of  their  undertaking.  It  does 
not  therefore  preclude  from  being  directors  of  a  rail- 
way company  the  members  of  a  banking  company, 
who  are  the  bankeis  and  treasurers  of  the  railway 
company. (i) 

327.  3rdly.  Of  the  number  (u)  of  the  directors. 
The  statute  itself  usually  prescribes  what  this  shall 
be  ;  to  guard  against  casual  vacancies  in  the  body,  it 

(r)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16,)  on  this  head,  see  ss.  83,  84,  post,  App. 

(s)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16)  on  this  head,  see  act,  s.  85 — 87,  post,  App. 

(()  The  Sheffield,  Aihtou-under-Lyne  and  Manchester  Rail- 
way Company  v.  Woodcock,  2  Railw.  Cas.  522  ;  S.  C.  7  M.  & 
W.  574. 

(u)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16)  on  this  head,  see  act,  ss.  81,  82,  89,  post, 
App. 


Of  the  Directors.  241 

also  gives  a  power  to  the  remaining  directors  to  fill 
up  all  such  vacancies  as  they  occur.  The  provision 
thus  made  for  a  certain  number  of  directors  is  how- 
ever, it  should  seem,  to  be  construed  as  matter  of 
direction  only,  and  not  of  condition,  as  something 
which  affects  only  the  internal  regulation  and  ma- 
nagement of  the  affairs  of  the  company  and  not  its 
external  concerns. (r^)  Supposing  therefore  a  party 
were  dissatisfied  with  the  proceedings  of  the  com- 
pany because  there  were  not  the  full  number  of  di- 
rectors, possibly  it  might  be  competent  for  him  to. 
move  for  a  mandamus  to  compel  the  directors  to 
suppl}'^  the  vacancies,  but  semhle,  it  would  afford  no 
answer,  in  the  mouth  of  a  shareholder,  to  an  action 
brought  by  the  company,  on  a  claim  duly  vested  in 
them.(</) 

32(S.  4thly.  O^  the  tenure  of  office. {r)  The  act  usu- 
ally provides  for  the  directors  retiring  by  rotation. 
This  rotation  is  so  contrived  as  to  secure  to  each  a 
certain  definite  period  of  service.  Pending  this  pe- 
riod, however,  a  director  may,  it  is  conceived,  be 
removed  for  an  offence  against  his  official  duty,  or 
generally  for  any  cause  that  shows  him  to  be  inca- 
pable or  unfit  to  execute  the  office  of  a  director. («) 
So  likewise,  where,  by  the  constitution  of  the  com- 
pany, a  qualification  is  necessary,  in  order  to  enable 
persons  to  act  as  directors,  a  party  may   cease  to 

(q)  See  judgment  of  Maule,  J.  in  The  Thames  Haven  Dock 
and  Railwaii  Company  v.  Rose,  3  Railw.  Cas.  177;  «S.  C.  4 
M.  &  Gr.  552.     See  also  Benson  v.  Hadjield,  4  Hare,  32. 

(»•)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16)  on  this  head,  see  act,  ss.  86,  88,  post,  App. 

(s)  See  2  Kyd  ou  Corp.  50  et  .seq. 


242       Comjmni/  as  constituted  under  the  Act. 

be  a  director  by  the  loss  of  the  qualification,  (s) 
as  for  instance,  where  the  qualification  consists  in  a 
party's  being  owner  of  a  certain  number  of  shares ; 
bankruptcy  would  necessarily  operate  to  determine 
his  character  of  director,  (inasmuch  as  it  would  de- 
prive him  of  his  shares,)  though  a  mere  equitable 
mortgage  of  shares  would  not,  it  seems,  have  this 
effect, («) 

329.  5thly,  Of  the  rejnMwerafiow(M)  of  the  directors. 
In  general,  the  act  constituting  the  company  makes 
no  express  provision  for  the  remuneration  of  the  di- 
rectors, but  leaves  it  entirely  in  the  discretion  of  the 
company.  In  such  a  case  a  director  can  claim  no 
recompense  for  his  service,  unless  by  virtue  of  some 
contract  or  resolution  of  the  company  under  their 
common  seal.  A  mere  vote  of  remuneration,  not 
under  the  common  seal,  amounts  to  no  more  than 
an  announcement  to  the  directors  for  the  time  being, 
that  a  certain  gratuity  shall  be  given  to  them  in  pro- 
portion to  the  quantum  of  attendance.  It  cannot, 
consequently  in  general  be  construed  to  vest  in  the 
directors  any  right  to  such  remuneration  as  against 
the  company,  but  leaves  it  a  mere  matter  of  favour 
or  compliment.(a;) 

(s)  Fhelpsv.  Lyle,  10  A.  iic  E.  116,  judgment  of  Lord  Den- 
man,  C.  J.  and  Littledale  and  Patteson,  Js. ;  see  also  Wil- 
son V.  Wilson,  6  Scott,  540,  where,  under  provisions  of  com- 
pany's deed  of  settlement,  director  held  incapable  to  act,  having 
absconded  to  America,  under  circumstances  evidencing  intention 
of  not  returning,  so  as  to  admit  of  the  company's  fiUing  up  his 
place. 

(t)  Ctimnmig  v.  Prescott,  2  Y.  &  Coll.  496. 

{u)  See  as  to  this  point  Companies  Clauses  Consolidation  Act 
(8  Yict.  c.16,  s.  91),  post,  App. 

(x)  Duiiston  V.  The  Imperial  Gas  Light  Company,  3  B.  &  Ad. 
129. 


Of  the  Directors.  243 

330.  6thly.  Of  the  powers,  (c)  duties,  and  respon- 
sibilities of  the  directors,  and  herein,  1st,  of  their 
powers.  According  to  the  usual  provisions  of  a  rail- 
way act,  the  directors  are  intrusted  with  the  general 
powers  of  management  necessary  for  carrying  into 
effect  the  design  of  the  company's  institution,  and 
for  the  due  conduct  of  the  affairs  of  the  company, 
saving  of  course  such  as  are  specially  reserved  to 
the  general  assemblies  of  the  company.  Powers  so 
extensive  would  clearly  authorize  the  dii'ectors  to 
contract  for  the  performance  of  works,  or  for  the 
supply  of  goods  so  far  as  the  purposes  of  the  rail- 
way may  require ;  or  again,  to  appoint  officers 
and  servants,  and  allow  them  a  proper  recompense 
(though  these  two  latter  powers  are  in  general  ex- 
pressly given  by  statute).  So  likewise  they  may 
make  calls,  and,  where  they  are  authorized  by  a  prior 
resolution  of  the  company,  mortgage  or  charge  the 
undertaking  and  tolls,  or  grant  an  annuity  by  way 
of  retiring  pension  to  an  officer  of  the  company 
entitled  to  a  salary,  but  wishing  to  retire  on  account 
of  ill  health.  (/)  But  the  powers  of  the  directors 
would  not,  it  is  conceived,  (g)  extend  to  the  raising 
money  by  way  of  loan,  or  to  the  accepting,  drawing, 
or  indorsing  bills  in  the  name  of  the  company,  such 

(e)  As  to  the  powers  of  directors  under  the  Companies 
Clauses  Consolidation  Act,  (8  Vict.  c.  16,)  see  act,  ss.  90,  91, 
post,  App. 

(/)  Clarke  v.  The  Imperiai  Gas  Company,  4  B.  &  Ad.  324. 

(g)  See  Stat.  7  &  8  Vict.  c.  85,  sects.  19,  20,  21,  post,  Ap- 
pendix, with  respect  to  loan  notes,  &c. ;  the  19th  sect,  expressly 
prohibits  the  future  issuing  of  loan  notes,  &c.  otherwise  than 
under  the  provisions  of  some  act. 
M  2 


244       Company  as  constituted  under  the  Act. 

modes  of  dealing  being  in  general  clearly  unneces- 
sary for  the  management  of  the  concerns  of  the 
company. 

331.  Effect  of  mortgage.  (Ji)  Assuming  the  di- 
rectors to  be  called  on  by  a  resolution  of  a  general 
meeting  to  exercise  the  above  power  of  mortgaging, 
a  question  naturally  suggests  itself  as  to  the  effect 
of  such  mortgage,  and  the  rights  that  the  mortgagee 
acquires  under  it.  This  must  of  course  depend  on 
the  particular  form  of  the  instrument,  which  is 
usually  prescribed  by  the  act.  A  mortgage  of  the 
undertaking  and  tolls  cannot,  it  seems,  be  construed 
to  include  the  land  of  the  company.  (?)  It  follows 
that,  under  such  a  security,  the  mortgagee  has  no 
equity  to  restrain  other  parties  from  using  their 
legal  remedies  against  such  land.  (Jc) 

332.  Of  the  duties  of  the  directors.il)  The  em- 
ployment of  a  director  is  of  a  mixed  nature  ;  it  par- 
takes of  the  nature  of  a  public  office,  but  at  the 
same  time  is  not  an  employment  that  affects  the 
public  government.  Directors  therefore  are  most 
properly  agents  to  those  who  employ  them  in  this 
trust,  and  empower  them  to  superintend  the  affairs 
of  the  corporation.  Consequently,  if  a  person  choose 
to  accept  the  office,  he  is  bound  to  exercise  it  with 
fidelity  and  reasonable  diligence,  and  it  is  no  excuse 

Qi)  As  to  power  of  mortgaging  under  the  Companies  Clauses 
Consolidation  Act,  (8  Vict.  c.  16,)  see  act,  s.  38,  post,  App. 

(i)  Doe  d.  Myatt  v.  The  St.  Helen's  and  Runcorn  Gap  Rait- 
way  Company,  2  A.  &  E.  N.  S.  364  ;  S.  C.  2  Railw.  Cas.  756. 

(A;)  Perkins  v.  Pritchard,  3  Railw.  Cas.  95  ;  S.  C.  nom.  Per- 
hins  V.  Deptford  Pier  Company,  13  Sim.  277. 

(/)  As  to  duty  of  making  calls,  see  post,  Sect.  4,  Sub-sect.  3. 


Of  the  Directors.  245 

to  say  that  he  has  no  benefit  from  it,  and  that  it  is 
merely  honorary.  (?«) 

iiS.'i.  Of  the  Uabiiities  of  the  directors.  These  may 
be  regarded  in  two  hghts  ;  (1st,)  as  regards  the  com- 
pany ;  and  (2nd,)  as  regards  the  world  in  general. 
(1st,)  where  the  acts  of  directors  are  within  their 
authority,  even  though  they  be  attended  with  bad 
consequences,  it  is  difficult  to  determine  that  these 
are  breaches  of  trust.  But  if  they  can  be  fixed 
with  acts  of  omission  or  commission,  there  it  may 
be  otherwise.  To  instance,  in  non-attendance ;  if 
some  directors  are  guilty  of  gross  non-attendance, 
and  leave  the  management  entirely  to  others,  they 
may  thereby  render  themselves  guilty  of  the  breaches 
of  trust  that  are  committed  by  those  others,  (n) 
And  where  there  appears  to  be  supine  negligence  in 
all,  by  which  a  gross  complicated  loss  happens,  all 
may  be  held  guilty. (o)  A  fortiori,  where  directors 
are  guilty  of  any  gross  and  positive  acts  of  mis- 
feasance, such  as  a  misapplication  of  the  funds  of 
the  company  to  their  own  private  purposes,  or  of 
otherwise  confederating  together  to  obtain  some 
private  good  at  the  expense  of  the  company,  they 
are  liable  to  naake  good  the  loss  which  the  company 
sustain  in  consequence,  (p)     So,  if  parties  connive 

(m)   Charitable  Corporation  v.  Sutton,  2  Atk.  400. 

(n)  Ibid. 

(o)  Ibid.  But  where  a  bill  is  filed  for  relief  in  respect  of  a 
fraud,  alleged  to  have  been  committed  by  several  persons,  it  is 
not  necessary  that  all  the  persons  charged  with  the  fraud  should 
be  made  defendants;  Seddon  v,  ConneLl,  10  Sim.  79. 

(p)  Ibid. ;  see  also  Fois  v.  HarhoUle,  2  Hare,  461  ;  Att.  Gen. 
V.  Wilson,  Cr.  &  Ph.  1.  So  for  making  false  entries  and  returns 
in  corporate  books,  serable,  an  action  would  lie  against  them  at 
the  suit  of  the  company  ;  see  Imperial  Gas  Company  v.  Clarke, 
7  Bing.  95. 


246       Company  as  constituted  under  the  Act. 

at  such  conduct  in  other  members  of  the  governing 
body,  and  do  not  make  use  of  tlie  powers  vested  in 
them  by  the  act,  to  prevent  the  ill  consequences 
arising  from  the  confederacy,  &c.  {q). 

334.  (2dly.)  Of  the  liability  of  the  directors  to  the 
world  in  general,  in  regard  of  acts  done  by  them  on 
behalf  of  the  company.  The  act  usually  provides 
that  they  shall  not  be  personally  responsible  for 
acts  legally  done  by  them  as  directors.  (>)  This 
protection  cannot  of  course  be  construed  to  extend 
to  any  wilfully  tortious  act  of  the  directors,  nor  to 
cases  where  they  voluntarily  take  upon  themselves 
to  act  beyond  the  scope  (5)  of  their  statutory  powers 
as  directors,  or  where,  though  the  matter  lies  within 
the  general  limits  of  their  authority,  yet  the  cir- 
cumstances of  the  case  show  them  to  have  acted  in 
their  individual  characters,  and  not  in  their  official 
capacity,  (t) 

Sub-Sect.  L — Of  the  Officers,  (u)  Servants,  ^c.  of 
the  Company. 

335.  Under  the  usual  provisions  of  a  railway  act, 

(g)  Charitable  Corporation  v.  Stitton,  2  Atk.  400. 

(r)  As  to  provisions  of  Companies  Clauses  Consolidation 
Act  (8  Vict.  c.  16)  on  this  point,  see  act,  s.  100. 

(s)  A  director  however  Ls  not,  it  seems,  personally  liable  in 
such  a  case,  where  the  other  side  has  the  same  knowledge  of  the 
laws  and  constitution  of  the  company  as  the  director  himself ; 
Tyrrell  v.  Woolleu,  1  M.  &  Gr.  820,  per  Bosanquet,  J. 

(t)  See  Tyrrell  v.  Wuolley,  1  M.  6c  Gr.  822 ;  Bult  v.  Mor- 
veil,  12  A.  6c  E.  748;  Fox  v.  Frith,  10  M.  &  W,  131  ;  Ha^i- 
cock  V.  Hodgson,  4  Bing.  269  ;  Dewers  v.  Pike,  Mur.  Sc  H.  131. 

(m)  As  to  accountability  of  officers  under  Companies  Clauses 
Consolidation  Act,  (8  Vict.  c.  16,)  and  remedies  to ^ifocce  same, 
&c.,  see  act,  ss.  109 — 114,  post,  App. 


Of  the  Officers,  ^c.  247 

the  general  power  of  appointing  and  dismissing  all 
officers,  servants,  &c.,  and  of  determining  the  amount 
of  their  remuneration,  is  vested  in  the  directors. 
Generally  speaking,  the  officers,  servants,  &c.  of  a 
railway  company,  would  seem  to  have  the  same 
rights  and  to  be  subject  to  the  like  liabilities  as  any 
ordinary  person  standing  in  the  same  position.  In 
certain  respects,  however,  the  liabilities  of  the  officers, 
&c.,  of  railway  companies  are  more  extensive,  inas- 
much as  for  particular  breaches  of  duty  they  are 
liable  to  be  punished  criminally,  (x)  And  this 
extends  generally  to  all  persons  employed  on  the 
railway. 


Sub-Sect.  5. — Of  Bye  Lans. 

1 .  Extent  of  Power  of  making  Bye  Laws. 

2.  Requisites  of  Bye  Laws. 

336.  1st.  Extent  of  power  of  making  bye  laws.{^y) 
In  general  a  railway  act  empowers  the  company  to 
make  bye  laws  and  regulations  for  the  management 
of  the  undertaking,  the  government  of  its  officers 
and  servants,  &c.  This  gift  of  an  express  power 
implies  a  negative,  viz.  that  they  shall  not  make  bye 
laws  in  other  cases,  (z)     Independently  therefore  of 

(i)  See  statute  3  &  4  Vict.  c.  97,  ss.  13,  14,  and  statute 

5  &  6  Vict.  c.  55,  ss.  17,  18,  Appendix,  and  post.  Cap.  6. 

(i/)  As  to  power  of  making  bye  laws,  &c.  under  Companies 
Clauses  Consolidation  Act,  (8  Vict.  c.  16,)  see  act,  ss.  124 — 127, 
post,  App. ;  under  Railways  Clauses  Consolidation  Act,  (8  Vict, 
c.  20,)  see  act,  ss.  108 — 1 11,  post,  App. 

('2)  Child  V.  Hudson's  Bay  Company,  2  P.  Will.  209.  See 
also  Calder  and  Hebble  Navigation  Compajiy  v.  Pilling,  14  M. 

6  W.  76 ;  there  it  appeared  that  the  company  had  a  power 


248        Cotnpany  as  constituted  under  the  Act. 

any  objection  on  the  score  of  contravening  their  act 
of  parliament,  a  railway  company  cannot,  it  should 
seem,  under  the  usual  provisions  of  a  railway  com- 
pany on  this  head,  make  a  bye  law  for  altering  what 
is  a  fundamental  part  of  the  constitution  of  the 
company,  such  as  the  amount  of  capital,  the  number 
or  value  of  the  shares,  &c.  («) 

337.  2nd.  Of  the  requisites  of  bye  laws.  In  the 
first  place,  they  must  be  within  the  scope  of  the 
company's  authority  ;  2dly,  they  must  be  under  the 
common  seal  of  the  company,  and  duly  published 
according  to  the  provisions  of  the  company's  act ; 
Srdly,  they  must  not  be  repugnant  to  the  general  law 
of  the  land,  or  the  provisions  of  the  (6)  company's 

under  an  act  of  parliament  to  make  bye  laws,  &c.  for  the  good 
jovernment  of  the  company,  and  for  the  good  and  orderly  using 
of  the  navigation,  &c.,  and  also  for  the  well  governing  of  the 
bargemen,  &c.  connected  with  it,  &c. ;  it  was  held  that  the  act 
did  not  authorize  the  company  to  make  a  bye  law  prohibiting 
navigation  on  the  canal  on  Sundays,  and  that  such  bye  law  was 
illegal  and  void. 

(a)  See  Smith  v.  Goldsworthy,  4  A.  &  E.  N.  S.  430.  See 
also  judgment  of  Vice-Chancellor  in  Ward  v.  Society  of  At- 
tornies,  1  Coll.  370. 

(b)  For  an  instance  of  this,  see  Report  of  Officers  of  Railway 
Department  for  1842,  p.  xviii.  There  it  appeared  that  a  company 
had  made  a  regulation,  by  which,  amongst  other  things,  the 
quantity  of  luggage  allowed  to  be  taken  free  of  charge  by  third 
class  passengers  was  limited  to  fourteen  pounds,  being  twenty-six 
pounds  less  than  the  minimum  prescribed  by  the  company's  act. 
On  the  attention  of  the  directors  being  called  by  the  railway 
department  of  the  Board  of  Trade  to  the  illegality  of  this  part  of 
the  regulation,  an  assurance  was  given  that  the  regulation,  which 
was  stated  to  have  been  introduced  through  inadvertence,  should 
be  immediately  corrected. 


Of  Bye  Laws.  249 

act ;  and  4thly,  they  must  be  laid  before  (c)  the  Board 
of  Trade  in  pursuance  of  the  statute  3  &  4  Vict, 
c.  97,  s.  8,  who  have  power  to  disallow  the  same. 


Sub-Sect.  6. — Of  Registration,  {d) 

1.  Of  the  Foi'mation  of  a  Register  of  the  Shareholders. 

2.  Of  the  Registering  the  Proceedings  of  the  Company,  &c. 

33S.  1st.  The  formation  of  a  register  of  the  pro- 
prietors is  a  (e)  duty  invariably  imposed  on  a  rail- 
way company  by  their  act  of  incorporation ;  conse- 
quently for  any  refusal,  express  or  implied,  to  regis- 
ter a  bona  fide  {f)  holder  of  shares,  an  action,  it  is 
conceived,  lies  against  the  company  at  the  suit  of 
such  holder,  {g)  To  sustain  such  an  action,  how- 
ever, a  party  ought,  it  seems,  to  be  prepared  to 
prove  his  title  to  the  shares,  in  respect  of  which  he 
claims  to  be  registered.  (//.)     If,  at  the  time  of  the 

(c)  See  post,  Cap.  6,  and  statute  3  &  4  Vict.  c.  97,  ss.  8,  9, 
10,  Appendix. 

(rf)  As  to  provision  on  this  head  in  Companies  Clauses  Con- 
solidation Act,  (8  Vict.  c.  16,)  see  act,  ss.9,  10,  post,  App. 

(c)  Mandamus  held  to  lie  to  canal  company  to  enter  probate 
of  will  of  deceased  shareholder ;  Rex  v.  Worcester  Canal  Com- 
pany, 1  M.  &  Ry.  529;  S.  C.  7  B.  &  C.  632,  nom.  Ex  parte 
Home. 

(f)  As  to  what  not  sufficient  proof  of  a  party  having  taken 
shares  in  a  company  mala  fide,  see  Daly  v.  Thompson,  10  M.  & 
\V.  309. 

(§•)  It  might  however  be  safer  to  proceed  against  the  registrar 
or  other  officer  of  the  company,  whose  duty  it  was  to  register 
the  complainant,  and  who  was  the  immediate  party  refusing ; 
Daly  V.  Thompson,  10  M.  &  VV.  309. 

(h)  Daly  V.  Thompson,  10  M.  &  W.  309. 
M  5 


250       Company  as  constituted  under  the  Act. 

plaintiff  tendering  his  shares  for  registration,  the 
number  of  shares  authorized  by  the  act  are  already 
entered  upon  the  register,  and  the  register  is  conse- 
quently full,  this  is  an  answer  to  the  action ;  pro- 
vided, that  is  to  say,  that  the  register  has  been  pro- 
perly filled,  as  otherwise  it  would  be  allowing  the 
company  to  take  advantage  of  their  own  miscon- 
duct, (i)  The  party's  proper  remedy  in  such  a  case 
would  seem  to  be  to  bring  his  action  against  the 
original  managers  of  the  undertaking  prior  to  the 
passing  of  the  act,  for  improperly  issuing  more  than 
the  contemplated  number  of  shares,  {k) 

339.  The  company  are  in  general  required  by 
their  act  not  simply  to  form  a  register  of  the  pro- 
prietors, in  the  first  instance,  but  likewise  to  h-eej)  it 
up  by  inserting  therein  the  names  of  all  persons  who 
from  time  to  time  become  entitled  to  shares  in  the 
undertaking.  (/)  To  obviate  the  difficulty  of  ascer- 
taining who  those  parties  are,  certain  forms  are  pre- 
scribed to  compel  them  to  come  forward,  and  until 
they  comply  with  those  forms,  they  are  not  entitled 
to  share  the  profits,  (m)  The  provisions  on  this 
head  being  obviously  intended  for  the  convenience 
and  security  of  the  company,  they  do  not  affect  the 
property  in  the  shares,  nor  the  liabilities  ;  conse- 
quently tliere  is  nothing  in  them  to  hinder  the  com- 

(i)  Daly  V.  Thompson,  10  M.  &  W.  309. 

(k)  Diet,  arg.,  ibid. 

(i)  See  provisions  of  Companies  Clauses  Consolidation  Act 
(8;  Vict.  c.  16,)  on  this  head,  s.  15,  post,  App.,  and  sect. 
18,  ib. 

(m)  Judgment  of  Lord  Chancellor  in  Fyler  v.  Fyler,  2  Railw. 
Cas.  875. 


Of  Registration .  251' 

pany  from  treating  as  a  shareholder  one  who  can 
in  reality  be  shown  to  be  such,  (n) 

340,  2dly.  Of  the  registering  the  proceedings,  ^c. 
of  the  cojvpany  or  the  directors,  (o)  This  is  likewise 
a  public  duty  ordinarily  prescribed  by  the  company's 
act  of  incorporation.  Where,  therefore,  a  railway 
company  had  omitted  to  enter  in  their  books  a  re- 
port of  the  directors  and  certain  resolutions  of  the 
company,  by  which  the  same  was  adopted,  the 
Court  of  Chancery,  on  the  ground  of  such  omission, 
allowed  a  supplemental  bill  in  the  nature  of  a  bill  of 
review  to  be  filed  against  the  company,  for  the  pur- 
pose of  bringing  before  the  court  such  report  and 
resolutions,  although,  under  all  the  circumstances  of 
the  case,  they  would  not  have  been  otherwise  dis- 
posed to  grant  the  a{)plication.  {p) 


Sub-Sect.  7. — Of  the  Books,  Records,   ^'c,  of  the 
Comfany.  (q) 

341.  In  order  to  give  effect  to  the  system  of  regis- 
tration that  it  contemplates,  a  railway  act  invariably 
requires  the  company  to  keep  certain  books,  and 
prescribes  the  particulars  to  be  entered  therein,  (r) 

(n)  Fyler  v.  Fyler,  ibid. ;  London  and  Brighton  Railway 
Company  v.  Fairctovgh,  2  Railw.  Cas.  544 ;  S.  C.  2  M.  &  Gr. 
674. 

(o)  See  Companies  Clauses  Consolidation  Act,  s.  98,  post,  App. 

(p)  Sheffield  Canal  Company  v.  Sheffield  and  Rotherham  Rail' 
way  Company,  23  Law  Journ.  Ch.  25  ;  S.  C.  1  Phillips,  484. 

(g)  As  to  the  keeping  and  inspection  of  accounts  under  Com- 
panies Clauses  Consolidation  Act  (8  Vict.  c.  16),  see  act,  ss. 
115—119,  post,  App. 

(r)  As  to  how  far  the  usual  provisions  of  a  railway  act  oa 
this  head  to  be  held  directory  or  not,  see  post.  Cap.  7. 


252         Company  as  constituted  under  the  Act. 

Such  books,  even  though  kept  in  strict  comphance 
with  the  act,  cannot  in  general  be  evidence  for  the 
company  further  than  is  provided  by  their  act.  (s) 

342.  The  act  usually  provides  for  the  shareholders 
having  access  to  the  books  of  the  company  under 
certain  limitations.  A  shareholder  who  neglects  to 
avail  himself  of  this  privilege  cannot,  when  sued  by 
the  company  for  calls,  compel  an  inspection  of  the 
company's  books,  at  least,  where  his  object  is  not  to 
enable  himself  to  plead  a  particular  plea,  but  to  dis- 
cover some  ground  of  defence  to  the  action,  {t) 


Sect.  4. — Of  the  Capital  of  the  Company. 

Sub-Sect.  I. — Of  the  Capital  of  the  Company  in  general. 
II. — Of  shares. 
III.— Of  Calls. 

Sub-Sect.  1. — Of  the  Capital  of  the  Company  in 
general. 

.j43.  a  railway  act  invariably  empowers  the  com- 
pany  to   raise   a   certain   amount  of  capital  by  the 

(s)  See  Hill  v.  Manchester  and  Saljord  Water  Works  Com- 
pany, 5  B.  &  Ad.  866  ;  Clarke  v.  Imperial  Gas  Company,  4  B. 
&  Ad.  315. 

(t)  Birmingham,  Bi'istol  and  Thames  Junction  Railway  Com- 
pany V.  White,  2  Railw.  Cas.  863  ;  S.  C.  1  A.  &  E.  N.  S.  282. 
As  to  right  of  inspection  of  books  of  company,  and  mode  of  en- 
forcing such  right,  &c.  see  Rex  v.  Wiltshire  Canal  Company,  5 
N.  &  M.  344,  S.  C.  3  A.  &  E.  477  .;  Rex  v.  Trustees  of  Korth- 
Leach  and  Witney  Roads,  5  B.  &:  Ad.  978  ;  Fontet  v.  Basing- 
stoke Canal  Company,  2  Bing.  N.  C.  370  ;  S.  C.  2  Scott,  543  ; 
Imperial  Gas  Light  Company  v.  Clarke,  7  Bing.  95  ;  Rex  v. 
Masters  and  Wardens  of  Merchant  Tailors'  Company,  2  B.  6;:  Ad. 
115  ;  Mayor  of  Southampton  v.  Graves,  8  T.  R.  590. 


Of  the  Capital  of  the  Company.  253 

mutual  subscriptions  of  its  members.  This  capital 
it  divides  into  shares,  which  are  made  to  vest  in  the 
subscribers  according  to  their  respective  contribu- 
tions, and  entitle  them  to  a  corresponding  propor- 
tionate part  of  the  profits  of  the  undertaking.  Such 
shares  are  transferable  by  the  proprietor,  and  in 
case  of  his  death,  bankruptcy,  &c.,  pass  to  his  legal 
representative.  A  party  accordingly  can  in  general 
no  otherwise  become  a  member  of  such  a  company 
than  by  himself  subscribing  to  the  undertaking,  or 
stepping  into  the  place  of  an  original  subscriber ; 
and  it  is  the  peculiarity  of  what  is  thus  made  the 
title  of  admission  to  the  company,  and  the  provision 
it  affords  for  the  succession  of  fresh  members,  that 
constitutes  one  of  the  main  features  of  these  com- 
panies, and  mainly  distinguishes  them  from  ordinary 
corporations. 

.'344.  A  railway  act  in  general  gives  a  power  to 
the  company,  not  merely  to  raise  a  certain  fund  out 
of  the  subscriptions  of  its  members,  but  likewise  to 
insist  on  the  payment  of  those  subscriptions.  The 
exercise  of  this  power  however  is  subjected  to  cei'- 
tain  stringent  restrictions  in  favour  of  the  subscri- 
bers. In  the  first  place,  a  party  is  not  to  be  called 
on  to  pay  the  entire  amount  of  his  subscription  at 
once  and  in  one  entire  sum,  but  only  by  certain  in- 
stalments and  at  certain  intervals,  as  the  exigencies 
of  the  society  may  require.  The  company  further- 
more are  required,  whenever  they  call  for  any  in- 
stalment, to  give  notice  thereof  to  the  subscribers, 
and  this  in  a  particular  way,  and  with  particular 
formalities  prescribed  by  the  act.  And  it  is  only 
where  these    various  requisites  are  fully  satisfied, 


254        Company  as  constituted  under  the  Act. 

that  the  company  can  avail  themselves  of  the  reine- 
dies  given  by  the  act  for  compelling  payment  from 
the  subscribers. 


Sub-Sect.  2.  —  Of  Shares. 

I. — Of  their  Nature. 
II. — Of  their  Incidents,  and  herein, 

1st,  Of  their  Capability  of  Transfer  ; 

2dly,  Of  their  Liability  to  Forfeiture. 

345.  I.  As  TO  THE  Nature  of  a  Share,  (a)  It 
may  be  defined  to  be  a  right  to  partake,  according 
to  the  amount  of  the  party's  subscription,  of  the 
surplus  profits  obtained  from  the  use  and  disposal 
of  the  capital  stock  of  the  company  to  those  pur- 
poses for  which  the  company  is  constituted.  In 
general,  the  act  expressly  provides  that  this  interest 
shall  be  deemed  personal  property.  Independently 
however  of  any  such  enactment,  it  must,  it  seems, 
be  so  regarded  ;  and  this,  notwithstanding  it  arises 
in  a  measure  out  of  realty,  it  being  the  surplus  profit 
only  that  is  divisible  among  the  individual  share- 
holders, and  the  railway,  land,  buildings,  &c.,  being 
the  mere  instruments  whereby  the  joint  stock  of  the 
company  is  made  to  produce  that  profit,  and  belong- 
ing moreover  exclusively  to  the  corporate  body, 
which  is  altogether  a  separate  person  from  its  indi- 
vidual members.  (6) 

346.  II.  Of  the  various  Properties  or  Inci- 

(o^  As  to  nature  of  shares  under  Companies  Clauses  Consoli- 
dation Act  (8  Vict.  c.  16),  see  act,  s.  7,  post,  App. 

(6)  Bradley  v.  Hotdsworth,  3  M.  &  W.  422;  see  also  Bligh 
V.  Brent,  2  Y.  &  Coll.  294,  and  cases  there  cited. 


Of  Shares.  255 

DENTS  usually  annexed  to  shares  in  a  railway  com- 
pany by  the  legislature;  and  herein,  1st,  of  their 
CAPABILITY  OF  ASSIGNMENT.  Railway  shares  are 
transferable,  &c.  (c)  in  three  ways ;  I.  By  the  act 
of  the  owner;  II.  By  the  act  of  the  law  ;  III.  By 
the  act  of  God.  The  first  class  of  transfers  is  again 
distinguishable  according  to  the  quality  or  quantity 
of  interest  that  passes  to  the  transferee,  viz.  into 
assignments,  leases  and  pledges,  equitable  mortgages 
and  the  like. 

347.  1st,  then,  oi  absolute  assignments,  and  herein, 
1st,  of  the  power  of  assignment  generally  ;  2dly,  of 
the  contract  of  sale ;  3rdly,  of  the  conveyance.  1st. 
Under  the  usual  provisions  of  a  railway  act,  shares 
are  transferable  at  the  sole  will  and  pleasure  of  the 
holder,  subject  only  to  this  one  restriction,  viz.  that 
shares  are  not  to  be  transferred  after  a  call  has  been 
made,  &c.  in  respect  thereof,  unless  such  call  has 
been  paid,  (rf)  The  provisions  of  railway  acts 
touching  registration,  not  being  intended  to  affect 
the  property  (e)  in  the  shares,  a  transfer  is  valid, 
though  made  by  an  unregistered  proprietor  prior  to 
the  formation  of  a  register  of  the  proprietors,  (f). 

348.  2dly.  Of  the  contract  of  sale  ;  and  here  four 
points  suggest  themselves  for  consideration,  the  title 

(c)  As  to  transfer  of  shares  under  Companies  Clauses  Conso- 
lidation Act  (8  Vict.  c.  1.6),  see  act,  s.  14,  et  seq.  App. 

(d)  Under  Companies  Clauses  Consolidation  Act,  s.  16, 
transfer  not  to  be  made  until  calls  paid.     See  App, 

(e)  See  London  and  Brighton  Railway  Company  v.  Fairclough, 
2  Railw,  Cas.  544  ;  S.  C.  2  M.  &  Gr.  674. 

(y)  Sheffield,  Ashton  under  Lyne  and  Manchester  Railway 
Company  v.  Woodcock,  2  Railw.  Cas.  522  j  S.  C,  7  M.  &  W. 
574. 


256        Company  as  constituted  under  the  Act. 

and  capacity  of  the  vendor,  the  contract,  the  rights, 
duties,  and  liabilities  to  which  it  gives  rise,  and  the 
remedies  incidental  to  those  rights.  First,  then,  of  the 
title  and  capacity  of  the  intended  vendor.  A  party 
may  enter  into  a  contract  for  the  sale  of  shares  in  a 
railway  company,  although  at  the  time  of  the  contract 
he  is  not  possessed  of  them,  nor  has  entered  into  any 
conti-act  to  purchase  them,  nor  has  any  reasonable 
expectation  of  becoming  possessed  of  them  by  the 
time  appointed  for  the  delivery  of  such  shares,  other- 
wise than  by  purchasing  them  after  the  making  of  the 
contract,  the  stock-jobbing  act  not  applying  to  bar- 
gains for  the  stock  of  a  railway  company,  but  only 
for  public  stock ;  {g)  but  where  the  other  party 
bargains  for  a  conveyance  from  the  vendor  himself, 
there  the  latter,  it  should  seem,  must  take  care  to 
acquire  a  property  in  the  shares  by  the  time  ap- 
pointed for  the  transfer,  so  as  to  be  capable  of  con- 
veying himself,  because  under  such  circumstances  the 
intended  transferee  must  be  understood  as  bargaining 
for  the  security  of  the  other's  implied  covenant  for 
title,  which  he  cannot  have,  if  a  different  person  is 
owner,  and  is  to  convey  to  him.  (Ji)  As  a  general 
rule,  a  vendor  ought  also  to  take  care  to  pay  all 
calls  due  before  the  time  fixed  for  the  transfer,  as  a 
railway  act  usually  provides  that  no  shares  in  the 

{g)  Uewiit  V.  Price,  4  M.  k  Gr.  355;  Hibblewhite  v.  M'Mo- 
rine,  5  M.  &  W.  462.  But  it  is  otherwise,  as  it  seems,  by  the 
French  law ;  and  therefore  a  contract  made  in  France  for  the  sale 
of  shares  in  a  foreign  undertaking  cannot,  under  such  circum- 
stances, be  enforced  in  this  counti-y ;  Hannuic  v.  Goldner,  1 1 
M.  &  W.  849. 

(/i)  Hibblewhite  v.  M'Morine,  2  Railw.  Cas.  66;  S.  C.  6  M. 
&  W.  200. 


Of  Shares.  257 

undertaking  shall  be  sold  after  any  call  has  become 
payable  in  respect  of  such  shares  unless  the  full 
amount  of  that  call  has  been  paid.  («)  This  provi- 
sion however  the  purchaser  may  waive  by  any 
agreement  or  stipulation  to  that  effect,  even  though 
it  be  by  parol  only,  shares  in  a  railway  company 
being  neither  an  interest  in  land  nor  goods  and  mer- 
chandize, and  therefore  contracts  regarding  them 
not  falling  within  the  operation  of  the  statute  of 
frauds,  (k) 

349.  Secondly.  Of  the  contract ;  and  herein,  1st, 
of  its  requisites ;  2nd,  of  its  form;  3rd,  of  the  rules 
of  construction  by  which  it  is  governed.  The  requi- 
sites of  a  contract  for  the  sale  of  railway  shares  must 
necessarily  be  the  same  as  those  of  an  ordinary  con- 

(0  See  ante,  256,  n,  (h). 

(fc)  Ibid.;  see  also  Humble  v.  Mitchell,  11  A.  &  E.  205  ; 
S.  C.  2  Railw.  Cas.  70;  Bradley  v.  Holdsworth,  3  M.  &  W. 
422 ;  Duncuft  v.  Albrecht,  12  Sim.  189.  '  See  also  Hargreaves 
V.  Parsons,  13  M.  &  W.  561 ;  there  the  defendant  and  one  P. 
agreed  for  the  sale  by  P.  to  the  defendant  of  the  "  put  or  call" 
of  fifty  foreign  railway  shares  at  a  certain  price  per  share  pre- 
mium, at  any  time  on  or  before  the  18th  February,  1844.  Be- 
fore that  day  the  defendant  agreed  to  resell  the  option  to  the 
plaintiff  and  to  guarantee  the  performance  of  the  agreement  by 
P.  On  the  16th  February,  the  plaintiff  called  the  shares  (i.  e. 
required  the  delivery  of  them  pursuant  to  the  agreement),  but  it 
was  at  the  same  time  verbally  agreed  between  him  and  the  de- 
fendant and  P.  that  they  should  be  delivered  by  P.  to  the  plain- 
tiff, not  on  the  18th  of  February,  but  on  the  2d  of  March  at  Paris. 
It  was  held  that  this  was  not  an  agreement  by  the  defendant  to 
be  answerable  for  the  default  of  P.,  but  an  original  promise  by 
the  defendant  for  the  delivery  of  the  shares  by  P.,  for  which  a 
note  in  writing  was  not  required  by  the  statute  of  frauds,  that 
statute  applying  only  to  promises  made  to  persons  to  whom 
another  was  already  or  was  to  become  answerable,  and  P.  never 
having  contracted,  &c.  with  the  plaintiff. 


258       Company  as  constituted  under  the  Act. 

tract  of  sale,  viz.  the  mutual  assent  of  the  parties 
and  an  agreed  price. 

350.  (2ndly.)  Of  the  form.  A  contract  for  the  sale 
of  railway  shares  need  not  be  in  writing,  inasmuch 
as  railway  shares,  as  has  before  been  said,  are  nei- 
ther an  interest  in  land,  nor  goods,  wares,  or  mer- 
chandize, (Ar)  and  therefore  contracts  regarding  them 
do  not  fall  within  the  operation  of  the  statute  of 
frauds. 

351.  (Srdly.)  The  class  of  contracts  in  question 
must,  it  seems,  be  taken  to  be  governed  by  the  like 
rules  of  construction  as  mercantile  contracts  in  ge- 
neral, of  which  they  form  a  class.  Evidence,  for 
instance,  of  a  prevailing  usage,  may  be  called  in  to 
alter,  qualify  or  explain  the  terms  of  such  a  contract. 
Where,  therefore,  parties  bargain  for  the  sale  of 
shares,  to  be  transferred  on  or  before  a  given  day, 
although  on  the  face  of  the  contract  the  option  of  the 
time  would  seem  to  be  with  the  seller,  being  the 
party  to  perform  the  first  act,  evidence  would, 
nevertheless,  it  should  seem,  be  admissible  to  show- 
that,  according  to  the  usage  prevailing  in  such  con- 
tracts, the  option  was  with  the  purchaser,  {l)  So 
likewise  in  an  action  for  not  accepting  (th)  railway 
shares  sold  at  Liverpool,  and  to  be  delivered  in  a 
reasonable  time,  a  rule  of  the  Liverpool  Stock  Ex- 
change, acted  on  by  all  the  Liverpool  brokers,  and 
seen  by  the  defendant,  "  that  the  seller  was  in  all 
cases  entitled  to  seven  days  to  complete  his  contract 
by  delivery,  the  time  to  be  computed  from  the  day 

{k)  See  ante,  257,  n.  (k). 
(I)  Hare  v.  Waring,  3  M.  &  W.  376. 

(m)  Sleioart  v.  Cauty,  2  Railw.  Cas.  616  ;  S.  C.  8  M.  &  W. 
160. 


Of  Shares.  259 

on  which  he  was  made  acquainted  with  the  name  of 
his  transferee,"  was  held  admissible  as  a  guide  to 
the  determination  of  what  was  reasonable  time  under 
all  the  circumstances  of  the  case.  (»«) 

352.  Thirdly.  We  have  to  speak  of  the  conse- 
quences of  the  contract ;  and  herein,  of  the  rights^ 
duties  and  liabilities  of  the  vendor  and  vendee  re- 
spectively. 

The  main  duties  of  the  vendor,  under  a  contract 
such  as  that  in  question,  are,  1st,  to  show  a  good 
title  (n)  to  the  shares  forming  the  subject  of  the 
contract ;  2ndly,  to  be  ready  and  willing  to  make  a 
legal  transfer  of  such  shares  at  the  proper  time,  and 
according  to  the  terms  of  the  contract,  &c. 

353.  The  main  duties  of  the  purchaser  on  the 
other  hand  are,  1st,  to  be  ready  to  accept  and  pay 
for  the  shares  in  question  (o)  pursuant  to  the  terms 
of  the  contract ;  2ndly,  to  prepare  a  proper  convey- 
ance, and  tender  the  same  for  execution,  upon  hav- 
ing a  good  title  to  the  shares  made  out  to  him  ;  (p) 
and  lastly,  upon  the  requisition  of  the  vendor  in  that 
behalf,  himself  to  execute  the  instrument,  and  to 
deliver,  or  attend  with  the  vendor  to  deliver,  such 
instrument  to  the  company,  in  order  that  a  memo- 

(m)  See  ante,  258,  n,  (to). 

(n)  See  judgment  of  the  Court  delivered  by  Parke,  B.,  in 
Humble  v.  Langston,  2  Railway  Cas.  541  ;  S.  C.  7  M.  &  W. 
517  ;  Hibblewhite  v.  M' Marine,  2  Railw.  Cas.  66  ;  S.C,6  M. 
&  W.  200. 

(n)  Stephens  v.  De  Medina,  21  Law  Journ.  Q.  B.  120  ;  S.  C. 
4  A.  &  E.  N.  S.  422  ;  Lawrence  v.  Knowles,  5  Bing.  N.  C.  399. 
Proof  of  the  purchaser  being  incapable,  from  the  state  of  his 
finances,  of  paying  for  the  shares,  is,  it  seems,  suflScient  to  esta-f 
blish  a  want  of  readiness  and  willingness ;  ibid. 

(p)  Stephens  v.  De  Medina,  ubi  supra. 


260        Company  as  constituted  under  the  Act. 

rial  of  the  transfer  may  be  entered  in  the  company's 
books,  and  indorsed  on  the  deed  of  transfer  pur- 
suant to  the  ordinary  provisions  of  railway  acts,  (p) 

3.54.  Right  of  action  of  vendor.  It  follows,  from 
the  above  brief  description  of  the  duties  of  the  par- 
ties, that  a  vendor,  to  entitle  himself  to  complain  of 
the  nonacceptance  of  shares  by  the  purchaser,  must 
show  two  things :  1st,  that  he  made  out  a  good  title 
to  the  shares,  (5)  and  2ndly,  a  readiness  and  willing- 
ness to  transfer,  &c.  (r) 

To  satisfy  the  above  conditions,  it  would  seem 
enough  for  a  vendor  to  prove  a  tender  of  share  cer- 

(p)  Judgment  of  Parke,  B.,  in  Humble  v.  Langston,  ubi 
supra. 

(q)  The  transfer  book  of  the  company  in  which  the  plaintiff's 
name  is  entered  as  transferee  is  no  proof  of  his  proprietorship  of 
the  shares ;  Hare  v.  Waring,  3  M.  &  VV.  362. 

(r)  Hannuic  v.  Goldner,  llM.&cW.  849.  There,  the  first 
count  of  the  declaration,  which  was  in  assumpsit,  alleged  that  in 
consideration  that  the  plaintiff,  at  the  defendant's  request,  would 
purchase  certain  shares  in  a  foreign  undertaking,  called  the 
Bank  of  Belgium,  at  a  stated  price  per  share,  the  defendant  pro- 
mised the  plaintiff  that  he  would  upon  request  accept  the  shares 
and  pay  for  them.  The  count  then  averred  that  the  plaintiff, 
relying  upon  the  defendant's  promise,  did  purchase  the  said 
shares  at  the  said  price,  nevertheless  the  defendant  did  not  nor 
would  accept  them  or  pay  for  them  the  money  for  which  the 
plaintiff  had  so  purchased  the  same,  although  often  requested  so 
to  do  by  the  plaintiff,  and  thereby  the  plaintiff  was  obliged  to 
pay  to  F.  P.,  the  person  from  whom  he  purchased  the  shares, 
the  money  he  was  liable  to  pay  him  by  reason  of  such  purchase. 
The  court  would  seem  to  have  inclined  to  the  opinion  that,  whe- 
ther the  count  imported  that  the  plaintiff  was  to  purchase  the 
shares  from  F.,  and  afterwards  sell  them  to  the  defendant,  or  to 
purchase  them  from  F.  as  agent  for  the  defendant,  it  was  bad  in 
substance,  for  want  of  an  allegation  of  readiness  and  willingness 
either  in  the  plaintiff  or  in  F.  to  deliver  them  to  the  defendant. 


Of  Shares.  261 

tificates,  coupled  with  an  offer  to  convey,  &c.  Such 
certificates,  liowever,  ought,  on  the  face  of  them,  to 
show  a  title  in  the  vendor  to  convey  the  shares  in 
question ;  (s)  that  is  to  say,  according  to  the  usual 
provisions  of  a  railway  act,  they  must  either  be  in 
the  plaintiff's  own  name  or  else  have  upon  them  in- 
dorsements of  the  transfer  to  him ;  or  if  they  are  in 
the  name  of  a  former  proprietor,  the  vendor  must, 
at  any  rate,  be  prepared  to  deduce  the  title  from 
such  former  proprietor  to  himself,  {t) 

Although  the  production  of  share  certificates  in 
the  requisite  form  may  be  sufficient  proof  of  title, 
yet  it  is  not,  it  is  conceived,  the  only  proof;  but  it 
is  competent  for  a  vendor  to  deduce  his  title  in  any 
other  way. 

35^}.  In  practice  it  is  not  unusual  for  a  seller  to 
tender  to  the  purchaser  share  certificates  accom- 
panied by  a  transfer  with  the  name  of  the  vendee  in 
blank,  and  this,  it  seems,  where,  at  least,  the  vendor 
has  the  property  in  the  shares,  is  sufficient  evidence 
of  a  readiness  to  transfer,  though  not  of  a  tender  of 
a  valid  conveyance,  (v) 

356.  Not  only,  however,  must  the  vendor  offer 
to  transfer  the  shares,  but  he  must  likewise  do  so 
within  the   time  prescribed  by  the  contract ;   he  is 

(s)  Hare  v.  Waring,  3  M.  &  W.  379. 

(f)  Semble,  this  would  not  be  enough  to  support  an  allega- 
tion in  a  declaration  of  a  tender  of  certificates  according  to  the 
provisions  of  the  act,  taking  the  provisions  relative  to  certificates 
to  be  in  the  common  form  ;  Hare  v.  Waring,  3  M.  &  W.  379, 
380. 

(«)  Humble  v.  Langston,  2  Railw.  Cas.  541  ;  S.  C.  7  M.  & 
W.  517. 


.262        Company  as  constituted  under  the  Act. 

entitled,  however,  for  this  purpose,  to  the  full  time 
allowed  by  the  contract,  and  cannot  be  deprived  of 
that  right  by  an  immature  request  to  transfer  on 
the  part  of  the  vendee,  made  prior  to  the  time 
having  expired.  (?i)  The  latter,  consequently,  is 
bound  to  accept  an  offer  of  transfer,  though  sub- 
sequent to  the  supposed  request,  if  made  within  the 
stipulated  time,  (m) 

357.  If  the  vendor  take  no  steps  to  enforce  the 
contract,  then  the  'purchaser,  if  he  wish  to  maintain 
an  action  for  the  nontransfer,  should  call  upon  the 
vendor  to  make  out  his  title,  &c.,  and  on  his  doing 
so  should  tender  him  a  proper  conveyance  for  exe- 
cution, (a)  and  request  him  to  execute  it,  and  offer 
to  pay  him  the  purchase  money  (x)  upon  its  being 
executed. 

358.  If  both  parties  lie  by  and  neglect  to  take 
any  steps  under  the  contract,  neither  party  can  com- 
plain of  the  other's  non-performance  of  such  con- 
tract. 

359.  What  damages  recoverable  by  vendor.  Where 
the  vendee  chooses  to  repudiate  the  contract  after  a 
due  offer  of  performance  on  the  part  of  the  vendor, 
&c.,  the  latter  has  a  right  to  a  reasonable  time  within 
which  to  resell  the  shares,  and  thereupon  is  entitled 
to  recover  as  damages  the  difference  between  the 

(jt)  Stexcart  v.  Cauty,  2  Railw.  Cas.  616. 

(x)  Stephens  v.  De  Medina,  21  Law  Journ.  Q.B.  120  ;  S.  C. 
4  A.  &  E.  N.  S.  422.  If  the  vendor  fail,  &c.  to  make  out  a 
title,  semble  this  dispenses  with  a  tender  of  conveyance,  &cc.  If 
the  contract  be  to  deliver  shares  on  demand,  it  has  been  held 
that  there  must  be  an  actual  request  to  deliver,  to  support  an 
action  for  non-delivery  ;  Green  v.  Murray,  6  Jur.  728. 


Of  Shares.  263 

contract  price  and  that  at  the  time  of  resale.  (2) 
This  time,  it  seems,  must  be  considered  to  run  only 
from  the  date  of  the  final  repudiation  by  the  pur- 
chaser, such  as  the  plaintiff'  can  act  upon  without 
hazard  or  difficulty,  (a) 

360.  What  by  vendee.  Where  the  vendor  repu- 
diates the  contract,  the  vendee,  having  performed 
his  part,  has  a  right,  as  it  should  seem,  to  recover  as 
damages  the  difference  between  the  contract  price 
and  the  price  at  the  time  when  the  shares  ought  to 
have  been  transferred,  or  thereabouts.  (6) 

361.  Right  of  vendor  to  he  mdemnifed  against 
future  calls.  Asa  general  rule,  rqwn  a  contract  for 
the  sale  of  railway  shares,  in  the  absence  of  an 
express  stipulation  to  that  effect,  the  law  does  not 
imply  a  promise  by  the  purchaser  to  indemnify  the 
vendor  against  subsequent  calls ;  (c)  neither  under 
such  circumstances  can  an  undertaking  to  that  effect 
be  inferred  in  point  of  fact.  A  vendor  accordingly, 
who  wishes  to  insure  himself  against  such  liability, 
must  take  one  or  other  of  two  courses  ;  either  he 
must  expressly  stipulate  (c)  for  such  an  indemnity 
with  the  purchaser,  or  else  he  must  take  the  proper 
measures  to  get  the  conveyance  coinpleted  and  the 
transfer  entered.  If  he  takes  the  latter  course,  and 
the  vendee  refuses   to  perform  his  part,  in  conse- 

(:)  Stewart  v.  Cauty,  2  Railw.  Cas.  620  ;  S.  C.  8  M.  &  W. 
160. 

(a)  Burned  v.  Hamilton,  2  Railw.  Cas.  624. 

(6)  See  Humble  v.  Mitchell,  3  Jur.  1188. 

(c)  Humble  v.  Langston,  2  Railw.  Cas.  533,  judgment  of 
court  delivered  by  Parke,  B. ;  S.  C.  7  M.  &  W.  517.  In  that 
case  there  was  no  time  specified  for  the  completion  of  the  con- 
tract, but  semble,  this  would  make  no  difference. 


264        Company  as  constituted  under  the  Act. 

quence  of  which  the  vendor  is  obliged  to  pay  future 
calls,  the  latter  may,  it  seems,  in  such  a  case,  re- 
cover the  amount  by  way  of  special  damage  for  the 
other  party's  breach  of  contract,  (c)  If  the  vendor 
neglects  to  get  the  conveyance  completed,  &c.  he 
then  becomes  a  trustee  for  the  purchaser,  and  as 
he  receives  the  profits,  must  be  content  to  pay  the 
outgoings,  (c) 

362.  4th.  Of  the  remedies  for  enforcing  the  con- 
tract. Of  remedies  at  law  enough  has  been  said 
under  the  preceding  head.  To  proceed,  then,  to 
the  notice  of  remedies  in  equity  ;  a  bill  in  equity  lies 
to  enforce  the  specific  performance  of  an  agreement 
for  the  sale  of  railway  shares,  {d)  And  although 
after  the  agreement  is  concluded  certain  variations 
are  proposed,  which,  it  is  agreed  by  both  sides, 
are  to  be  drawn  out  in  form  and  embodied  in  the 
agreement,  which  is  to  be  then  signed  by  the  vendor 
(leaving  of  course  to  the  latter  the  option  of  signing 
or  not) ;  still  if  the  vendor  do  not  ultimately  agree 
to  such  variations,  the  original  agreement  stands  as 
it  was  first  concluded,  and  may  be  enforced  accord- 
ingly, (f/) 

iJ63.  We  proceed  in  the  third  place  to  treat  of 
the  Conveyance ;  and  here  two  points  present  them- 
selves  for   consideration:    1st,    as   to   its    validity; 

(c)  See  ante,  263,  n.  (c). 

(d)  Duncuft  V.  Albrecht,  12  Sim.  189.  And  if  a  party  pur- 
chase railway  shares,  but  will  not  enter  the  transfer  in  the  com- 
pany's books,  though  called  on  to  do  so  by  the  vendor,  in  con- 
sequence of  which  the  vendor  is  obliged  to  pay  the  calls  sub- 
sequently falling  due  upon  such  shares,  of  which  he  duly  ap- 
prizes the  former,  an  injunction  lies  to  restrain  the  purchaser 
from  reselling  the  shares  or  cancelling,  &c.  or  parting  with  the 
transfer;  Atkinson  v.  Heaton,  Reg.  Lib.  A.  1839,  p.  233. 


Of  Shares.  2Q5 

Sndly,  as  to  its  effect.  1st.  The  instrument  of 
transfer  is  usually  (e)  required  to  be  in  writing  and 
under  the  hands  and  seals  of  both  parties ;  when 
executed  this  instrument  is  to  be  delivered  to  the 
company,  and  a  memorial  of  it  is  to  be  entered  in 
the  company's  transfer  book,  and  the  fact  of  such 
entry  indorsed  on  the  instrument.  In  requiring  the 
instrument  to  be  under  the  seals  of  the  parties,  the 
legislature  must,  it  seems,  be  understood  to  intend 
a  deed ;  and  all  questions  as  to  the  validity  of  any 
such  instrument  must  of  course,  as  a  general  rule, 
be  determined  by  the  common  rules  applicable  to 
that  species  of  instrument.  It  will  accordingly  be 
wholly  inoperative,  if,  according  to  what  appears  at 
one  time  to  have  been  the  customary  course  of 
dealers  and  speculators  in  railway  shares,  the  name 
of  the  vendee  is  left  in  blank  for  the  purpose  of  the 
latter's  either  filling  in  the  name  of  some  subsequent 
purchaser  from  himself,  or  perhaps  himself  handing 
over  the  instrument  to  such  purchaser,  (y )  So  if  the 
instrument  is  altered  in  a  material  part  after  it  is  exe- 
cuted ;  as,  for  instance,  by  substituting  the  name  of  a 
fresh  person  in  the  place  of  that  of  the  original  trans- 
feree :  and  although  the  alteration  be  made  before 
the  deed  is  executed  by  the  original  transferee,  and 
the  seller  re-execute  the  altered  deed,  still  it  cannot 
operate  as  a  conveyance  to  the  new  party  without  a 
fresh  (jg-)  stamp,  {li)  the  stamp  being  exhausted  by  the 

(e)  See  Companies  Clauses  Consolidation  Act,  (8  Vict.  c.  16, 
s.  14,)  post,  App. 

(/)  Hebblewhite  v,  M'Morine,  2  Railw.  Cas.  66  ;  S.  C.  6  M. 
&  W.  200. 

(g)  Tl^^  London  and  Brighton  Railway  Company  v.  Fair- 
dough,  2  Railw.  Cas.  558  ;  5.  C.  2  M.  &  Gr.  674. 

(h)  As  to  stamp  on  deed  of  transfer  of  shares  ia  joint  stock 


266       Company  as  constituted  under  the  Act. 

operation  of  the  deed  at  common  law,  independently 
of  the  execution  by  the  purchaser.  It  is  conceived 
that  it  would  be  otherwise,  if  it  could  be  shown 
that  the  alteration  was  made  by  way  of  correcting  a 
mistake  in  the  instrument  as  it  stood  originally,  and 
whilst  the  matter  was  still  in  fieri ;  though,  even  in 
this  case,  it  would  still  be  incumbent  on  the  party, 
who  produced  and  relied  upon  the  document  in  its 
altered  state,  to  show  the  circumstances  under  which 
the  alteration  was  made,  and  that  the  supposed  state 
of  facts  really  existed.  Vv  here  the  instrument  is  in 
itself  valid,  it  is  not  impaired  by  reason  of  a  proper 
memorial  thereof  not  being  entered  in  the  transfer 
book  of  the  company.  (J) 

364.  2nd.  As  to  the  effect  of  a  transfer  ;  it  con- 
veys to  the  purchaser  all  the  interest  of  the  vendor  ; 
thouo-h,  till  a  memorial  of  the  deed  is  entered,  the 
seller  continues  liable  to  all  future  calls,  and  entitled 
to  receive  the  profits  accruing  in  respect  of  the 
shares,  {k)  If  in  this  state  of  things  the  seller  is 
called  on  to  pay  calls  in  respect  of  the  shares  with 
which  he  has  parted,  he  may,  it  should  seem,  as  a 
general  rule,  have  recourse  to  the  purchaser  to  in- 
demnify him  ;  the  conveyance  ordinarily  containing 
an  express  stipulation  that  the  purchaser  is  to  hold 
the  shares  on  the  like  conditions  as  did  the  vendor 
before  him,  (  /)    When  this  last-mentioned  ceremony 

company,  and  when  ad  valorem  stamp  sufficient,  see  Wolselei) 
V.  Cox,  2  A.  &E.  N.  S.  321. 

(i)  The  London  and  Brighton  Railway  Company  v.  Faif' 
dough,  2  Railw.  Cas.  558  ;  S.  C.  2  M.  &  Gr.  674. 

(k)  See  8  Vict.  c.  16,  s.  15,  post,  App. 

(i)  Humble  v.  Langston,  judgment  of  court  delivered  by 
Parke,  B.,  2  Railw.  Cas.  541  ;  S.Cl  31.  &  W.  517. 


OJ  Shares.  267 

of  entry  is  complied  with,  the  purchaser  then  at 
length  becomes  a  full  and  perfect  shareholder,  being 
clothed  with  all  the  rights  that  appertained  to  his 
predecessor. 

oQ5.  It  should  seem  that,  vmder  the  ordinary  sta- 
tutory form  of  conveyance  an  implied  covenant  for 
title  arises  on  the  part  of  the  vendor  ;  the  purchaser 
therefore  may  perhaps  be  taken  to  have  his  remedy 
over  against  the  vendor,  in  case  the  latter  prove 
subsequently  not  to  have  a  good  title  to  the  shares 
which  he  professes  to  convey  to  the  purchaser.  (??«) 

;366.  2ndly.  Of  a  lease  of  railway  shares.  An 
owner  of  railway  shares  may  demise  the  dividends 
to  arise  from  such  shares,  reserving  a  certain  rent ; 
and  in  such  case,  if  the  demise  be  by  deed,  the  lessee 
is  estopped  from  denying  the  lessor's  title  to  the 
shares,  even  though  the  fact  of  the  latter's  possession 
of  and  title  to  the  shares  is  averred  in  the  introduc- 
tory part  of  the  declaration,  independently  of  the 
deed.  (?z) 

367.  ^rdly.  Of  pledges,  equitable  mortgages,  ^'c. 
It  is  competent  for  a  shareholder  to  pledge,  deposit, 
assign,  &c.  his  shares  to  some  third  party  by  way 
of  security,  &c.  for  some  given  claim,  and  by  so 
doing  to  create  a  lien  or  charge  on  such  shares  in 
lavour  of  that  party,  and  this  though  the  forms  pre- 
scribed by  the  statute  are  not  observed.  In  order, 
however,  that  this  effect  may  be  produced,  there 
must  be  something  to  show  the  intention  to  create 

(m)  Hebbkwhite  v.  M'Morine,  2  Railw.  Cas.  67  ;  S.  C.  6  M. 
&  W.  200. 

(n)  Beckett  v.  Bradley,  23  Law  Jour.  C.  P.  3.  The  estoppel 
was  held  in  the  above  case  to  appear  sufficiently  upon  the  plead- 
ings, and  it  was  held  not  necessary  to  reply  it. 


268       Company  as  constituted  under  the  Act. 

a  lien,  (o)  and  the  other  side  should  take  care  to 
give  due  notice  to  the  company  of  the  transaction. 

368.  When  a  party  thus  pledges,  mortgages,  &c. 
his  shares,  he  becomes,  as  it  should  seem,  a  trustee 
for  the  mortgagee,  pledgee,  &c.,  receiving  the  profits, 
but  bound  to  account  to  his  cestui  que  trust  for 
whatever  surplus  of  those  profits  may  remain  after 
payment  of  the  outgoings.  If  in  such  a  case  the 
mortgagee,  &c.,  for  the  preservation  of  the  property 
and  to  prevent  a  forfeiture,  pay  any  calls  upon  the 
shares,  he  may,  it  seems,  claim  to  hold  them  till  he 
is  reimbursed,  in  addition  to  his  original  claim,  the 
outlay  thus  occasioned  him.(p) 

369.  If  the  mortgagee,  pledgee,  &-c.,  suflTer  the 
mortgagoi',  &c.  (o)   to  have  the  full  use  and  enjoy- 

(o)  Cummhig  v.  Prescott,  2  Y.  &  Coll.  488. 

(p)  SeeExparteDobson,re  Boult,'2,0  Law  Jour.,  Bankruptcy, 
49  ;  &.  C.  2  M.  D.  &  D.  685.  Where  there  is  an  absolute  trans- 
fer of  shares,  subject  to  redemption,  the  mortgagor,  if  he  elect  to 
redeem  the  shares,  may  possibly  be  bound  personally  to  indem- 
nify the  mortgagee  against  all  expenses  and  liabilities  incurred  in 
maintaining  the  mortgage  property  ;  but  if,  as  he  may,  he  choose 
to  waive  that  right,  and  submit  to  be  foreclosed,  it  would  seem 
that  the  mortgagee  cannot  have  any  personal  demand  against 
him  for  any  such  expenses,  &c.,  relating  as  they  do  to  property 
which,  upon  the  supposition  just  made,  he  does  not  think  fit  to 
claim.  Judgment  of  Wigram,  V.  C.  in  Phene  v.  Gillon,  9  Jur. 
1086  ;  S.  C.  24  Law  Journ.  Ch.  65.  And  it  is  the  same  where 
there  is  a  transfer  without  a  clause  of  redemption,  but  made 
upon  the  understanding  that  the  shares  are  to  be  a  security 
to  the  transferee  for  some  given  claim.  Ibid.  The  first  branch 
of  the  above  rule  applies  still  more  strongly  where  the  liability 
does  not  attach  until  after  the  transferor  has  paid  off  the  debt 
and  in  effect  elected,  and  bound  himself  by  such  election, 
to  accept  a  retransfer  of  the  shares,  the  transferee  from  that 
time  standing  in  the  position  of  a  mere  trustee  for  the  trans- 


Of  Shares.  269 

meut  of  the  shares  without  giving  notice  of  his  lien 
to  the  company,  it  will  be  lost  as  against  a  subse- 
quent purchaser  for  valuable  consideration  without 
notice. 

370.   II.   Of  the  transfer  of  shares  by  the  act  of 

feror.  In  July,  1841,  the  plaintiff  lent  to  the  defendant  the 
sum  of  880L  upon  the  security  of  his  promissory  note  for  that 
amount,  and  of  the  mortgage  of  100  shares  in  the  Western 
District  Banking  Company  ;  it  being  understood  that  the  plain- 
tiff was  not  to  be  liable  to  calls,  &c.  in  respect  of  the  shares, 
and,  if  he  required  it,  was  to  have  a  transfer  of  tlie  shares.  On 
the  10th  March,  1842,  a  regular  deed  of  transfer  of  the  shares 
from  the  defendant  to  the  plaintiff,  in  the  form  required  by  the 
regulations  of  the  company,  was  executed  by  the  defendant  in 
pursuance  of  his  undertaking,  and  duly  recorded  in  the  transfer 
register  of  the  company.  On  the  15th  July,  1842,  the  amount 
of  the  loan  was  increased  from  880/.  to  lOOOL,  and  upon  that 
occasion  the  original  transaction  was  brought  down  to  that  date, 
the  amount  of  the  charge  being  increased  from  880/.  to  lOOOi. 
On  the  4th  August,  1843,  the  defendant  paid  off  the  debt ;  and 
on  the  25th  of  the  same  month  the  plaintiff  applied  to  the  direc- 
tors of  the  company  (who  under  the  deed  of  settlement  of  the 
bank  had  power,  upon  certain  terms,  to  refuse  the  transfer,)  to 
transfer  the  100  shares  in  question  to  the  defendant ;  and  there- 
fore, in  conformity  with  the  requisitions  of  the  deed  of  settle- 
ment, signed  a  notice  requiring  them  to  do  so.  This  he  for- 
warded to  the  defendant,  who  signed  and  transmitted  it  to  the 
office  of  the  bank.  In  September,  1843,  while  the  question  of 
the  transfer  was  still  pending  before  the  directors,  a  person  al- 
leging himself  to  be  a  creditor  of  the  company  recovered  three 
judgments  of  large  amount  against  the  public  officer  of  the  com- 
pany, and  soon  afterwards,  the  bank  being  insolvent,  proceeded 
to  make  the  judgments  available  against  the  plaintiff.  It  was 
held,  upon  a  bill  filed  by  the  plaintiff  against  the  defendant  for 
an  indemnity,  that  the  plaintiff  was  entitled  to  an  indemnity  from 
the  defendant  against  all  liabilities  properly  incurred  by  him  as 
the  holder  of  the  shares  from  the  time  at  which  they  were  trans- 
ferred to  him.     Ibid. 


270       Company  as  constituted  under  the  Act. 

the  law.  And  first,  by  hanhniptcrj  or  insolvency,  (q) 
Upon  a  shareholder  becoming  bankrupt,  &c.  his 
shares  vest  in  his  assignees,  and  they  become  pro- 
prietors, ahhoiigh,  till  they  come  forward  and  satisfy 
the  company  of  their  title,  they  may  not  be  entitled 
to  receive  any  of  the  profits.  If  at  the  time  of  the 
bankruptcy  of  the  legal  owner,  the  shares  are  pledged, 
mortgaged,  &c.,  the  assignees  take  them  subject  to 
the  interest  of  the  pledgee,  mortgagee,  &c.  ;  and  if 
the  mortgagee,  for  the  preservation  of  the  property 
and  to  prevent  a  forfeiture,  have  been  forced  to  pay 
calls  on  the  shares,  he  may  claim  to  be  repaid  the 
amount  of  such  calls  out  of  the  proceeds  of  the  sale 
ordered  on  occasion  of  the  bankruptcy,  (r) 

371.  Not  only  the  shares  of  which  the  bankrupt 
is  the  real  owner,  but  likewise  such  as  are  in  his 
order  and  disposition  with  the  consent  of  the  ti'ue 
owner,  &c.,  pass  to  his  assignees  on  the  bankruptcy  ; 
as,  for  instance,  where  the  bankrupt  appears  in  all 
outward  respects  as  the  real  owner  of  shares  which 
he  in  point  of  fact  holds  on  a  secret  trust;  (s)  or 
there  is  a  pledge  or  deposit  of  shares  not  accom- 
panied by  a  notice  (t)  to  the  company,  (u)     In  such 

(9)  Semble,  where  an  insolvent  has  shares  in  a  railway  com- 
pany the  court  may  order  all  persons  whose  consent  is  necessary 
to  transfer  such  shares  into  the  names  of  the  assignees  ;  1  Sc  2 
Vict.  c.  110,  s.  54. 

(r)  Ex  parte  Dobson,  re  BouU,  20  Law  Jour,,  Bankruptcy, 
49;  5.  C.  2M.  D.  &  D.685. 

(s)  See  Ex  -parte  Ord,  Dea.  166;  Ex  parte  Watkhis,  2  Mont. 
&  Ayr.  348,  reversing  decision  of  Court  of  Review,  1  Mont.  & 
Ayr.  689. 

(t)  Ex  parte  Vallaiice,  3  Mont.  &  Ayr.  224  ;  S.  C.  2  Deac. 
354  ;  Ex  parte  Bignold,  3  Mont.  &  Ayr.  477  ;  Ex  parte  Spen- 
cer, 3  ftlont.  &  Ayr.  697. 

(w)  But  quaere  whether  the  absence  of  notice  is  sufficient  per 


Of  Shares.  271 

cases  consequently  the  bankruptcy  of  the  ostensible 
holder,  depositor,  &'c.  operates  to  defeat  the  claim 
of  the  cestui  que  trust,  pledgee,  &c.  and  vests  the 
entire  property  in  the  shares  in  the  assignees  dis- 
charged from  any  lien  or  incumbrance.  But  if  no- 
tice of  the  lien  is  given  to  the  company,  that  is 
enough  to  prevent  reputed  ownership,  (a)  And  even 
an  hnplicd  notice  may,  it  seems,  be  sufficient  for  this 
purpose  ;  as  where  the  transaction  is  in  itself  notice, 
one  or  more  of  the  parties  standing  in  such  relation 
to  the  company  as  to  make  any  express  notice  a 
mere  idle  form.  (  y) 

372.  2dly.  Of  transfer  by  marriage.  The  in- 
terest of  a  female  proprietor  upon  her  marriage  is 
transmitted  to  her  husband ;  though,  till  he  comes 
forward  and  satisfies  the  company  of  his  title,  he 
may  not  be  entitled  to  receive  any  of  the  profits  (;:). 
Accordingly,  if  the  husband  deposit  what  were  the 
w'ife's  shares  as  a  security  for  a  debt,  and  then  be- 
come bankrupt,  no  notice  of  the  transaction  having 
been  given  to  the  company  before  the  bankruptcy, 
the  shares  must  be  considered  as  in  the  reputed 
ownership  of  the  husband,  and  accordingly  pass  to  his 

se  conclusively  to  establish  a  claim  by  the  assignees  on  the  ground 
of  reputed  ownership.  See  1  Mont.  &  Ayr.  Bank.  Law,  p.  846, 
2nd  ed. ;  Ex  parte  Pooley,  2  M.  D.  &  D.  505  ;  but  see  Ex  parte 
Arkwright,  3  M.  D.  &  D.  129. 

(x)  Ex  parte  Masterman,  2  Mont.  &  Ayr.  209;  Ex  parte 
Harrison,  3  Mont.  &  Ayr.  506  ;  Ex  parte  Waithman,  2  Mont. 
&  Ayr.  364. 

(y)  See  Ex  parte  Harriso7i,  3  M.  &  Ayr.  506  ;  see  also  Ex 
parte  Waithman,  2  M.  &  Ayr.  364  ;  Ex  parte  Bignold,  3  M.  & 
Ayr.  477. 

(s)  See  Companies  Clauses  Consolidation  Act  (8  Vict.  c.  16, 
ss.  18,  19,)  post,  App. 


272        Company  as  constituted  under  the  Act. 

assignees  ;  and  this,  as  it  should  seem,  although  the 
husband,  beyond  the  deposit,  have  done  nothing  to 
reduce  the  shares  into  possession,  and  they  still 
stand  in  the  company's  books  in  the  wife's  maiden 
name,  (a) 

37S.  3rdly.  Of  a  judge's  order  for  charging 
shares.  (6)  Where  a  judgment  debtor,  against  whom 
judgment  has  been  entered  up,  has  any  shares  in  a 
railway  company  standmg  in  his  name  in  his  own 
right,  or  in  the  name  of  any  person  in  trust  for  him, 
such  shares  may  be  charged  witli  the  payment  of 
the  amount  of  the  judgment  debt  and  interest,  (c) 
For  this  purpose  the  judgment  creditor  must  apply 
to  a  judge,  who  is  thereupon  empowered  to  make 
an  order  accordingly  charging  such  shares,  or  such 
of  them,  or  such  part  thereof,  as  he  shall  think  fit. 
Such  order  entitles  the  judgment  creditor  to  all  such 
remedies  as  he  would  have  been  entitled  to,  had 
such  charge  been  made  in  his  favour  by  the  judg- 
ment debtor,  (c)  No  proceedings  however  can  be 
taken  upon  it  till  after  six  calendar  months  from 
the  date  of  the  order,  (c)  The  order  is  to  be  made 
in  the  first  instance  ex  parte  and  without  notice  to 
the  debtor,  and  must  be  an  order  to  show  cause 
only,  (d)     It  operates  to  restrain  the  company  from 

(a)  See  Ex  parte  Spencer,  3  M.  &  Ayr.  697. 

{b)  As  to  the  respective  spheres  of  authority  of  the  judge  and 
court  under  this  act,  and  tiie  orders  that  it  authorizes  a  judge  to 
make,  and  generally  as  to  the  operation  of  the  statute  and  of 
orders  made  under  it,  see  Brown  v.  Bamford,  9  M.  &  W.  42 ; 
Rogers  v.  HoUoway,  21  Law  Journ.  C.  P.  182  ;  S.  C.  5  M.  & 
Gr.  292  ;  Fowler  v.  Churchill,  21  Law  Journ.  Exch.  230,  233  ; 
S.  C.  11  M,  &W.  57,  323. 

(c)  1  &2  Vict.  c.  110,  s.  14. 

(d)  Ibid.  s.  15. 


Of  Shares.  273 

permitting  a  transfer  of  the  shares  until  the  order  is 
made  absolute  or  discharged.  Or,  if  after  due  notice 
of  the  order  the  company  permit  a  transfer,  they 
become  themselves  liable  to  the  judgment  creditor 
for  the  amount  of  the  property  so  charged  and 
transferred,  or  such  part  thereof  as  is  sufficient  to 
satisfy  the  judgment,  (e)  No  disposition  of  the 
judgment  debtor  in  the  mean  time  is  valid  as  against 
the  judgment  creditor;  and  unless,  within  the  time 
specified  in  the  order,  the  judgment  debtor  shows 
good  cause  to  the  contrary,  the  order,  on  proof  of 
notice  to  the  judgment  debtor,  is  to  be  made  abso- 
lute. (/")  The  judge  has  power  upon  application 
of  the  judgment  debtor,  or  any  person  interested,  to 
discharge  and  vary  the  order  and  to  give  costs,  (f) 
If  before  the  shares  are  realized,  and  the  proceeds 
applied  in  payment  of  the  judgment  debt,  the  judg- 
ment creditor  takes  the  person  of  his  debtor  in 
execution,  he  forfeits  all  right  to  the  benefit  of  the 
charge.  (5-) 

.'J7i.  The  above  provisions  are  now  defined,  &c. 
by  the  3  &  4  Vict.  c.  82,  s.  1,  and  made  expressly 
to  embrace  the  interest  of  the  judgment  debtor, 
whether  in  possession,  remainder  or  reversion,  and 
whether  vested  or  contingent,  as  well  in  the  shares 
themselves  as  in  the  dividends  thereof. 

375.  Purchase  money  deposited  by  the  vendee 
(a  railway  company)  in  the  hands  of  a  third  person 
for  the  use  of  the  vendor,  against  whom  a  judgment 
has  been  obtained,  &c.,  cannot  be  attached  under 


(»  1  &  2  Vict.  c.  110,  s.  15. 
(J)  Ibid. 
(S)  Ibid.  s.  16. 
n5 


274       Company  as  constituted  under  the  Act. 

the  above  provisions,  as  it  is  no  part  of  the  funds  of 
the  company,  {h) 

376.  III.  Of  Transfers  by  the  Act  of  God.  Ac- 
cording to  the  usual  provisions  of  a  railway  act,  a 
share,  on  the  death  of  a  proprietor,  vests  in  his 
executors,  and  they  become  proprietors,  although 
they  may  not  be  entitled  (i)  to  receive  any  of  the 
profits  until  they  come  forward  and  satisfy  the  com- 
pany of  their  title  by  production  of  the  will,  &c.  (A) 

377.  The  right  of  a  shareholder  to  share  in  the 
profits  of  the  undertaking,  being  personal  property, 
may,  it  should  seem,  for  the  purposes  of  probate,  be 
considered  as  locally  situate  in  the  diocese  where  is 
the  head  office  of  the  company,  and  accordingly  a 
probate  granted  by  the  court  of  the  bishop  of  that 
diocese  he  deemed  sufficient,  (/)  or  if  the  railway  ex- 
tend into  two  provinces,  then  a  probate  in  the  one 
province  where  the  head  office  is  situate  would  be 
enough,  (in) 

378.  A  SECOND  INCIDENT  (?j)  of  the  property  in 
railway  shares  is  its  liability  to  forfeiture.  By 
a  railway  act  a  power  is  usually  lodged  in  the  di- 
rectors of  a  railway  company  to  declare  shares  for- 
feited in  case  of  nonpayment  of  calls.     Such  for- 

(Ji)  Robinson  v.  Peace,  7  Dowl.  93. 

(i)  See  Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16, 
ss,  18,  19,  post,  App. 

(fc)  Fyler  v.  Fyler,  2  Railw.  Cas.  813;  S.  C.  ibid.  875. 

(/)  See  Ex  parte  Home,  decided  in  the  analogous  case  of 
canal  shares,  7  B.  &  C.  632. 

(m)  See  Smith  v.  Stafford,  also  decided  on  a  canal  act,  2 
Wils.  Ch.  Ca.  166. 

(n)  As  to  provisions  of  Companies  Clatises  Consolidation  Act, 
8  Vict.  c.  16,  on  subject  of  forfeiture,  see  act,  ss.  29 — 35,  post, 
App. 


Of  Shu7es.  275 

feiture  however  in  general  is  made  not  to  attach  till 
it  has  been  reported  to  and  sanctioned  by  a  general 
meeting  of  proprietors.  In  the  exercise  of  this 
power  of  forfeiture  the  directors  are  bound  to  act 
bona  fide  and  conformably  to  the  requisitions  of  the 
act  under  which  they  derive  their  power  ;  otherwise 
the  parties  whose  interests  the  proposed  application 
of  such  power  is  calculated  to  affect,  may  apply  to  a 
court  of  equity  to  restrain  them  from  proceeding,  (o) 
Suppose,  for  instance,  that,  on  the  occasion  of  calls 
.being  made  on  the  shareholders  of  a  company 
generally,  a  certain  class  of  shares  are  exempted 
from  payment  of  calls,  a  court  of  equity  would,  it 
seems,  restrain  the  directors  from  proceeding  to 
declare  a  party's  shares  forfeited  for  nonpayment  of 
any  such  call,  until  they  should  have  first  taken 
steps  to  put  all  the  shareholders  on  an  equal  footing 
in  such  respect,  (o) 


Sub-Sect.  3.— Of  Calls. 
I.  Of  the  Power  of  making  Calls  generally. 
II.  Of  the  corresponding  Duty. 

III.  Conditions  precedent. 

IV.  Liability  to  Calls. 

1.  Generally. 

2.  Determination  or  Devolution  of  Liability. 

(1)  By  transfer. 

(2)  By  forfeiture. 
V.  Requisites  of  Calls. 

379.  I.  Of  the  po7i'er(p)  of  making  calls.  In 
order  to  facilitate  the  formation  of  railway  com- 

(o)  See  Preslon  v.  The  Grand  Collier  Dock  Company,  2  Railw. 
Gas.  335;  S.C.  11  Sim.  327. 

(p)  See  Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16, 
s.  22,  post,  A  pp. 


276       Company  as  constituted  under  the  Act. 

panies  and  induce  parties  to  become  subscribers  to 
such  undertakings,  tlie  amount  of  the  subscriptions 
is  made  payable  not  at  once  and  in  the  aggregate, 
but  only  in  small  sums  or  instalments  termed  calls. 
A  power  to  demand  and  enforce  payment  of  these 
calls  is  always  given  by  the  act  incorporating  the 
•company.  In  according  this  power  however,  the 
legislature  is  at  the  same  time  careful  to  impose 
certain  conditions  on  its  exercise.  Such  conditions 
are  either  in  the  nature  of  conditions  precedent, 
and  accordingly  require  to  be  first  satisfied  before 
the  company  can  be  permitted  to  exercise  the  power 
in  question  at  all ;  or  else  they  prescribe  certain 
regulations  for  the  exercise  of  that  power,  touching, 
for  instance,  the  parties  by  and  upon  whom,  the 
time  at  which,  or  the  manner  in  which,  calls  are  to 
be  made,  and  the  like.  An  authority  given  under 
such  restrictions  and  limitations  must,  it  is  obvious, 
be  strictly  pursued.  The  company  in  the  first  place 
must  be  in  a  position  to  make  a  call ;  secondly,  the 
person  on  whom  it  is  made  must  be  a  person  whose 
liability  to  pay  calls  is  contemplated  by  the  act,  and 
lastly,  there  must  be  a  compliance  with  all  the  forms 
prescribed  by  the  act  touching  time,  place,  the 
manner  of  making  calls,  S:c. 

oSO.  II.  Of  the  dull)  of  making  calls,  incidental 
to  the  above  power.  A  railway  company  is  not  like 
an  ordinary  corporation,  possessed  or  supposed  to 
be  actually  possessed  of  corporate  property,  and 
with  which  individuals  contract  on  the  faith  of  such 
present  possession,  but  a  corporation  with  a  power 
of  creating  a  future  corporate  property  from  time 
to  time  out  of  the  private  assets  of  its  individual 
members,  and  with  which  contracts  are  made  on  the 


Of  Calls.  277 

faith  that  an  honest  exercise  will  be  made  of  such 
power  when  necessary.  It  follows  that  it  is  the 
duty  of  the  directors,  when  the  exigencies  of  the 
society  and  the  state  of  its  affairs  are  such  as  fairly 
to  require  a  call  to  be  made,  to  put  in  force  the 
power  entrusted  to  them  for  that  purpose.  Sup- 
posing therefore  it  were  clearly  established  that  the 
company  were  evading  payment  of  their  just  debts, 
&c.  on  the  ground  that  they  had  no  corporate  assets 
actually  in  possession,  a  mandamus  perhaps  might 
lie  to  compel  the  company  to  make  the  necessary 
calls,  or  even  to  enforce  payment  of  calls  already 
made,  so  as  to  put  themselves  in  funds  to  answer  the 
demands  of  their  creditors.  This  supposes  that  the 
company  is  in  such  a  state  as  to  be  capable  of  obey- 
ing a  mandamus  so  couched,  as  for  instance  that  it 
has  the  proper  officers,  &c.  {q) 

381.  III.  Of  conditions  precedent.  To  sustain  the 
validity  of  a  call,  the  company  must  be  competent 
to  make  it.  Where  a  railway  act  requires  certain 
things  to  be  done  before  a  company  are  to  be  allow- 
ed to  avail  themselves  of  their  statutory  powers, 
this  obviously  constitutes  a  condition  precedent, 
which  the  company  must  first  show  to  be  satisfied, 
in  order  to  entitle  themselves  to  make  or  enforce 
payment  of  calls  upon  the  shareholders,  (r) 

(q)  See  Reg.  v.  Victoria  Park  Company,  1  A.&  E.  N.  S.  288, 
judgment  of  Denman,  C.  J.  In  Reg.  v.  Tliames  Haven  Dock 
and  Railway  Company,  a  similar  mandamus  issued  to  a  com- 
pany, who  returned  that  they  had  no  assets,  but  that  they  had 
made  the  necessary  calls  ;  Crown  Office,  1844. 

(?•)  The  Company  of  Proprietors  of  the  Norwicli  and  Lowestoft 
?iovigatioH  v.  Theobald,  1  M.  &,  M.  151  ;  see  also  The  Stratford 
and  Morelon  Railway  Company  v.  Stratton,  2  B.  &  Ad.  525; 
judgment  of  Hullock,  B.,  in  Cromford  Railway  Company  v. 
Lacey,  3  Y.  6c  J.  89. 


278        Comimny  as  constituted  under  the  Act. 

The  statute  establishing  a  company  provided  that 
the  whole  of  the  capital  was  to  be  subscribed  before 
any  of  the  powers  given  thereby  were  put  in  force. 
It  was  held  that  the  completion  of  the  subscription 
list  was  necessary  to  enable  the  company  to  make 
a  call,  and  that  they  could  not,  (5)  consequently, 
recover  the  amount  of  a  call  made  prior  thereto, 
notwithstanding  it  was  provided  by  a  subsequent 
section  of  the  act,  that  in  actions  for  calls  it  should 
only  be  necessary  for  the  company  to  prove  that 
the  defendant  was  a  shareholder  at  the  time  of 
making  the  call,  that  the  call  was  in  fact  made,  and 
such  notice  thereof  given  as  directed  by  the  act. 

382.  But  although,  where  a  clear  condition  prece- 
dent is  imposed  on  the  coinpany  by  the  legislature, 
proof  must  be  given  of  its  performance,  before  they 
can  be  suffered  to  make  or  enforce  calls  upon  the 
shareholders,  yet  the  court  will  not,  it  seems,  permit 
that  in  every  case,  where  an  action  is  brought  for 
calls,  the  defendant  should  turn  round  upon  the  com- 
pany and  object  some  defect  it  may  be  in  their  con- 
stitution, or  in  the  mode  of  their  proceedings  under 
their  act,  or  the  informality  of  the  appointment  of  the 
directors,  &c.,  as  a  ground  for  defeating  the  claim  of 
the  company  ;  at  least  when  (as  is  generally  the  case) 
the  statute  itself  limits  the  answer  to  be  given  to  such 
claim,  (i)  An  act  provided,  that  in  actions  for  calls 
it  should  only  be  necessary  for  the  company  ro  prove 
the  proprietorship  of  the  defendant  and  the  giving 
of  such  notice  of  the  making  of  the  calls  in  ques- 

(s)  The  Company  of  Proprietors  of  the  Xoruich  and  Lowestojt 
Navigation  v.  Theobald,  1  M.  &  JM.  151. 

(t)  As  to  provision  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16,)  on  this  head,  see  act,  s.  27,  post,  App. 


Of  Calls.  279 

tion  as  directed  by  the  act ;  it  was  held  that  a  party 
sued  for  calls  could  not,  under  the  act,  set  up,  by 
way  of  defence,  that  the  calls  were  made  for  pur- 
poses other  than  those  warranted  by  the  act,  or  that 
there  had  been  a  deviation  from  the  original  line, 
and  that  the  money  was  called  for  in  respect  of  such 
deviation,  or  that  fewer  shares  had  been  allotted 
than  the  act  required,  {^l)  But,  supposing  the  com- 
pany itself  to  be  a  bubble,  or  its  statutory  powers  to 
have  been  obtained  by  gross  fraud  and  misrepre- 
sentation practised  on  the  legislature,  or  supposing 
the  party  sued  for  calls  to  have  been  induced  to 
become  a  shareholder  by  the  misrepresentations  and 
fraud  of  the  directors,  possibly  that  might  afford  a 
ground  for  relief  in  equity  against  the  claims  of  the 
company  for  calls,  (.r) 

383.  IV.  Of  the  liabH/tTj  to  calls  ;  (tj)  and  1st,  of 
such  liability  generally.  In  order  to  render  a  party 
liable  for  calls,  he  must  be  shown  to  be  one  of 
those  whose  liability  is  contemplated  by  the  act  of. 
parliament.  Those  persons  are,  in  general,  divi- 
sible into  three  classes:  Ist,  subscribers;  2ndly, 
persons  who  have  acquired  shares  by  the  statutory 
mode  of  transfer ;  and  3rdly,  parties  who,  without 
being  legally  constituted  members,  have  yei  by  their 
conduct  dispensed   with   the  machinery  which   the 

(w)  London  and  Brighton  Railway  Company  v.  Wilson,  Same 
V.  Fair  dough,  6  B.  N.  C.  135. 

(a)  See  The  Cromford  and  High  Peak  Railway  Campany  v. 
Lacey,  3  Y.  &  J.  80  ;  the  judgment  of  the  Vice-Chancellor  in 
Mangles  v.  The  Grand  Collier  Dock  Company,  2  Railw.  Cas. 
359 ;  S.  C.  10  Sim.  519  ;  Thorp  v.  Hughes,  3  Myl.  &  Cr.  742. 

(y)  As  to  who  liable  to  calls  under  Companies  Clauses  Con- 
solidation Act,  (8  Vict.  c.  16,)  see  act,  ss.  21,  22,  post,  App. 


280        Company  as  constituted  under  the  Act. 

legislature  renders  necessary  to  constitute  a  mem- 
ber, and  who  are  consequently  estopped  from  saying 
they  are  not  members. 

384'.  Subscribers,  who  meant  by.  (First)  then,  of 
the  first  class.  To  fix  a  party  with  liability  on  this 
score,  it  must,  of  course,  be  made  out  that  he  has 
subscribed  within  the  meaning  of  the  particular  act. 
Now  the  term  "  subscriber"  may  be  understood  in 
two  senses,  either  of  persons  who  have  actually 
contributed  money,  or  of  those  vvho  have  simply 
stipulated  and  bound  themselves  to  contribute,  (z) 
The  question  in  which  sense  it  is  to  be  understood 
in  any  given  case  must,  of  course,  depend  upon  the 
provisions  of  the  particular  statute.  Supposing  that 
the  term  is  obviously  intended  to  be  used  in  the 
latter  of  the  above  senses,  it  remains  to  be  con- 
sidered in  what  manner  a  party  must  bind  himself 
so  as  to  constitute  himself  a  subscriber  within  the 
provisions  of  tlie  particular  act.  When  the  act  con- 
templates as  the  test  of  membership  the  subscription 
of  a  contract  binding  on  the  subscribers  and  their 
heirs,  it  would  clearly  be  insufficient  proof  of  a 
party  being  a  member,  to  show  simply  tliat  he  had 
signed  a  contract,  which,  though  professing  to  bind 
his  heirs,  was  not  under  his  seal,  (a)  But,  because 
the  original  subscribers  appear  on  the  face  of  the 
act  to  have  contracted  by  deed,  (as,  for  instance, 
by  a  recital  in  the  act  to  that  eflfect,)  this  is  no 
reason  for  holding  that  additional  subscribers,  who 
are   evidently  contemplated   by  the  act,  must  bind 

(2)  Thames  Tunnel.  Company  v.  Sheldon,  6  B.  &  C.  341. 
(a)  See  Cromford  and  High  Peak  Railway  Company  v.  Lacey, 
3  Y.  &  J.  80. 


Of  Calls.  281 

themselves  in  the  same  manner  as  the  original  sub- 
scribers, (h) 

385.  (2ndly.)  To  charge  a  party  as  legal  trans- 
feree of  shares,  it  must,  of  course,  appear  that  the 
mode  of  transfer  pointed  out  by  the  statute  has 
been  strictly  pursued  ;  where,  therefore,  the  transfer 
is  required  to  be  by  writing  under  the  seal,  &c.  of 
the  parties  and  duly  stamped,  no  action  for  calls  can 
be  maintained  against  a  party  who  claims  under  an 
instrument  void  by  reason  of  its  being  executed 
with  a  blank  for  the  name  of  the  purchaser,  (c)  or 
one  which  is  altered  in  a  material  part  after  exe- 
cution by  the  vendor,  {d)  and  then  re-executed  by 
him  without  being  restamped.  Supposing,  how- 
ever, the  instrument  itself  to  be  free  from  objection, 
proof  of  the  entry  of  a  memorial  thereof  is  not 
necessary  to  enable  the  company  to  recover  ;  the 
provision  on  that  head  usually  found  in  a  railway 
act  being  intended  only  for  the  security  of  the  com- 
pany, (rf) 

.386.  (Srdly.)  Although  a  party  be  neither  an  ori- 
ginal subscriber,  nor  claim  through  one  by  virtue  of 
a  conveyance  in  the  form  prescribed  by  law,  still  he 
may  be  subject  to  pay  calls  when  hy  his  conduct  he 
can  fairly  be  taken  to  have  dispensed  with  the  for- 
malities required  by  the   legislature  to  constitute  a 

(6)  See  The  Great  North  of  England  Railway  Cumjjany  v. 
Biddulph,  2  Railw.  Cas.  410  ;  S.  C.  7  M.&c  W.  243. 

(c)  Hebblewhite  v.  M'Moritie,  2  Railw.  Cas.  51;  .S.  C.  6  M. 
&  W.  200  ;  Sheffield,  Ashton-under-Lyne  and  Manchester  Rail- 
way Company  v.  Woodcock,  2  Railw.  Cas.  522  ;  S.  C.  7  M.  &  W. 
574. 

(d)  London  and  Brighton  Railway  Company  v.  Fairclough,  2 
Railw.  Cas.  544 :  S.  C.  2  M.  &  Gr.  674. 


282       Company  as  constituted  under  the  Act. 

member.  For  instance,  where  a  party  can  be  shown 
to  have  held  himself  out  to  the  world  and  acted  as 
a  proprietor,  he  cannot,  it  seems,  in  such  case,  be 
allowed  to  turn  round  on  the  company  and  say  that 
he  is  not  a  member,  (e)  So  likewise,  where  a  party, 
by  claiming  to  be  registered,  or  by  representations 
to  the  like  effect  addressed  to  the  company,  &-c. 
induces  them  to  treat  him  as  a  member,  he  cannot 
afterwards  deny  that  he  is  so.  (/ )  It  makes  no 
difference  in  such  a  case  how  he  comes  to  his  share, 
wliether  by  a  bare  pui-chase  and  receipt  of  scrip 
certificates  that  are  handed  over  to  him  by  the 
vendor,  or  by  a  transfer,  in  itself  invalid,  from  an 
unregistered  proprietor  prior  to  the  formation  of  the 
register  of  the  proprietors,  {g) 

387.  Secondly.  Of  the  determination  or  devolution 

(e)  See  Cromford  and  High  Peak  Bailivay  Company  \.Lacey, 
3  Y.  &  J.  80. 

(_/")  London  Grand  Junction  Railway  Company  \ .  Freeman , 
2  Railw.  Cas.  468  ;  5.  C.  2  ftl.  &  Gr.  606  ;  Sheffield,  Ashton- 
under-Lyne  and  Ma7ichester  Railway  Company  v.  Woodcock,  2 
Railw.  Cas.  522  ;  S.  C.  7  M.  &  W.574  ;  Cheltenham  and  Great 
Western  Union  Railway  Company  v.  Daniel,  2  Railw.  Cas.  728  ; 
S.  C.  6  Jur.  577  ;  London  Grand  Junction  Railway  Company  v. 
Graham,  Same  v.  Gunston,  2  Railw.  Cas.  870;  S.  C.  1  Ad.  &  E. 
N.  S.  271  ;  Birmingham,  Bristol  and  Thames  Junction  Railway 
Company  v.  Locke,  2  Railw.  Cas.  867  ;  S.  C.  1  Ad.  &  E.  INT.  S. 
256. 

(g)  London  Grand  Junction  Railway  Company  v.  Freeman, 
ubi  supra  ;  Sheffield,  Ashton-under-Lyne  and  Manchester  Rail- 
way Company  v.  Woodcock,  ubi  supra.  The  doctrine  laid  down 
in  the  text,  must,  it  is  conceived,  be  understood  with  this  limi- 
tation, that  there  is  nothing  in  the  company's  act  to  confine  the 
liability  for  calls  to  original  subscribers,  or  their  legal  trans- 
ferees. See  judgment  of  Lord  Denman,  C.  J.,  in  London  Grand 
Junction  Railway  Company  v.  Freeman,  ubi  supra. 


Of  Calls.  283 

of  the  above  liaUlity.  This  may  be  brought  about 
in  two  ways  :  1st,  by  transfer ;  2ndly,  hy  forfeiture. 
Again,  a  transfer  may  take  place  in  three  ways  :  by 
the  act  of  the  owner,  by  the  act  of  the  laii\  and  by 
the  act  of  God. 

388.  (First)  then,  of  a  transfer  by  the  act  of  the 
owner.  Subject  to  one  restriction,  viz.  that  he  is  not 
to  assign  while  in  arrear  for  calls  to  the  company,  a 
shareholder  possesses  a  discretionary  power  of  as- 
signing his  shares,  and  by  the  exercise  of  that  power 
may  at  any  time  rid  himself  of  all  future  liability  for 
calls,  (Ji)  the  general  scope  and  policy  of  a  railway 
act  being  to  treat  a  shareholder  (at  least  one  who 
takes  by  transfer,  and  is  not  an  original  subscriber) 
as  identified  with  his  share,  and  as  having  nothing 
to  do  with  the  company  either  as  regards  rights  or 
liabilities  before  he  becomes  or  after  he  ceases  to  be 
a  shareholder.  A  shareholder  accordingly  continues 
liable  to  the  payment  of  calls  only  so  long  as  he 
individually  continues  possessed  of  his  shares,  and 
upon  assignment  thereof,  coupled  with  an  entry  of 
a  memorial  of  the  transfer,  the  assignee  holds  the 
shares  upon  the  same  conditions  as  his  assignor,  and 
is  to  all  intents  and  purposes  substituted  (J)  in  his 
place  ;  shares  may  be  thus  assigned  even  to  insol- 
vent parties,  (i) 

(Ji)  H udder sfield  Canal  Company  v.  Buckleij,  7  T.  R.  42.  But 
it  may  be  questioned,  whether  (looking- at  the  ordinary  provisions 
of  railway  acts)  an  original  subscriber  can  thus  discharge  him- 
self from  his  liability  on  the  parliamentary  contract ;  see  Hornby 
V.  Houlditch,  cited  in  Ladford  v.  Barber,  1  T.  R.  92,93  ;  Fitz- 
patrick  on  Railway  Rights,  &c.  p.  13. 

(j)  Huddersfield  Canal  Company  v.  Buckley,!  T.  R,  42. 


284        Company  as  constituted  under  the  Act. 

389.  A  question  has  been  made,  whether  the 
above  rule  applies  to  the  case  of  an  assignment  be- 
tween the  time  of  a  call  being  made  by  the  directors 
and  that  appointed  for  its  payment.  The  ordinary 
provisions  of  railway  acts  on  this  subject  go  far  to 
show  that  they  do  not  contemplate  the  continuing 
liability  of  a  shareholder  (not  being  an  original  sub- 
scriber), who  holds  a  share  at  the  time  a  call  is 
made,  but  transfers  it,  and  enters  a  memorial  of  the 
transfer  before  the  call  is  payable.  The  remedies 
that  the  statutes  in  question  provide  in  case  of  non- 
payment of  calls,  by  action,  by  forfeiture  and  by 
withholding  dividends,  are  remedies  against  those 
who  are  the  holders  of  shares  at  the  time  the  call  is 
payable.  The  provision  likewise,  that  the  seller 
shall  continue  liable  only  till  a  memorial  of  transfer 
is  entered,  and  that  prohibiting  a  transfer  after  a  call 
is  payable,  seem  to  show  that  if  any  further  liability 
on  the  part  of  a  shareholder  who  had  transferred,  or 
any  further  restraint  on  alienation  had  been  in- 
tended, it  would  have  been  expressly  provided  for, 
and  consequently  lead  to  the  like  conclusion,  viz. 
that  the  remedy  of  the  company  under  the  circum- 
stances cannot  at  any  rate  be  sought  against  the 
transferror,  {k) 

390.  It  remains  to  be  considered,  whether  the 
company  has  any  remedy  against  the  transferee.  To 
such  an  hypothesis  there  is  this  strong  objection, 
viz.  that  the  statutes  in  the  remedies  by  action  they 
provide  against  defaulters  would  seem  to  point  at 
one  and  the  same  party  throughout,  viz.  the  pro- 

(k)  Judgment  of  Tindal,  C.  J.,  in  The  Aylesbury  Railway 
Company  v.  Mount,  2  Raihv.  Cas.  685 ;  S.  C.  4  M.  &  Gr.  651. 


Of  Calls.  285 

prietor  for  the  time  being  at  the  time  of  the  making 
of  the  call,  and  on  whom  consequently  the  call  is 
made.  {V)  Consequently,  without  doing  some  vio- 
lence to  what,  on  a  fair  intendment  of  the  sense  of 
the  provisions  in  question,  would  seem  to  be  the  in- 
tention of  the  legislature,  a  party  who  acquires  a 
share  by  transfer  in  the  supposed  interval  can  hardly 
be  brought  within  the  operation  of  those  remedies. (0 

391.  It  would  seem  to  follow  from  what  has  been 
just  said,  that  the  case  in  question  is  not  one  con- 
templated or  provided  for  by  provisions  resembling 
those  of  the  act  under  consideration,  and  that  con- 
sequently in  any  such  case,  where  a  shareholder 
chooses  to  transfer  his  share  just  as  a  call  is  fallino- 
due,  he  may  by  so  doing  defeat  the  claim  of  the 
company  pro  tanto.  (in) 

392.  In  order  to  have  the  effect  of  dischargintj  a 
shareholder  from  his  liability  to  calls,  there  must  as 
a  general  rule  be  a  regular  transfer  (n)  in  the  mode 

(<)  The  Aylesbury  Railway  Company  v.  Thompson,  2  Railw. 
Cas.  678  ;  S.  C.  19  Law  Journ.  Q.  B.  124. 

(m)  Though  the  prohibitioa  be  against  any  transfer  after  a 
call  is  made,  and  not  simply  after  it  is  payable,  still  a  difficulty 
may  arise  as  to  what  is  the  time  of  making  a  call,  which  prevents 
the  free  transfer  of  shares,  viz.  whether  it  is  to  date  from  the  re- 
solution of  the  directors,  or  from  the  notice  in  the  newspapers  of 
the  call,  or  even  from  the  period  when  the  calls  become  due. 
See  judgment  of  Parke,  B.  in  Sheffield,  Ashton-under-Lyne  and 
Manchester  Railway  Company  v.  Woodcock,  2  Railw.  Cas.  530  ; 
S.  C.  7  M.  &  W.  574. 

(n)  It  may  be  proper  here  briefly  to  consider,  whether  any 
and  what  exceptions  there  are  to  this  rule,  and  for  this  purpose 
to  consider  the  effect  on  the  liability  to  calls,  1st,  of  a  transfer 
of  scrip  prior  to  the  passing  of  the  act,  and  2dly,  of  a  transfer 


286        Company  as  constituted  under  the  Act. 
prescribed  by  the  act.     Any  other  course  of  pro- 
subsequent  to  the  act,  but  either  not  in  the  regular  form  pre- 
scribed by  the  act,  or  else  not  followed  up  by  the  requisite 
solemnities. 

I.  Then  to  consider  the  effect  of  a  transfer  of  scrip  prior 
to  the  act,  there  are  two  parties  whose  position  is  to  be  here 
considered;  1st,  the  original  subscriber  (see  Terrell  on  Sub- 
scribers' Liabilities,  p.  20  et  seq.)  ;  2nd,  the  transferee. 

1st.  In  considering  the  first  point  there  are  three  contin- 
gencies, that  it  may  be  proper  here  to  notice  :  (1st,)  the  case, 
where  the  scripholder  is  willing  to  come  in  and  register,  and 
is  accordingly  registered  by  the  company  after  the  passing  of 
the  act,  A'ow  we  have  seen  that,  under  the  usual  provisions  of 
railway  acts  (see  ante,  pp.  281,  282,)  where  a  scripholder 
by  claiming  to  be  registered,  or  by  any  representation  to  the 
like  effect  addressed  to  the  company,  &c.  induces  them  to  treat 
him  as  a  member,  he  cannot  afterwards  deny  that  he  is  so,  and 
by  consequence  becomes  liable  to  the  company  for  calls  just  as 
any  other  shareholder.  It  would  seem  that,  under  such  circum- 
stances, the  company  must  be  considered  to  have  abandoned  all 
further  claim  upon  the  original  subscriber,  and  to  have  elected 
to  look  exclusively  to  the  transferee.  The  former  consequently 
is  therefore  discharged  from  all  liability  to  the  company.  But 
see  n.  (/i),  ante,  p.  283. 

The  (2nd)  contingency  is  where  though  the  company  are  will- 
ing to  register  the  scripholder,  the  latter  refuses  to  come  in  and  be 
registered  ;  in  this  case  the  original  subscriber  continues  liable  to 
the  payment  of  calls,  and  he  has  no  remedy  (in  the  absence  at 
least  of  a  special  agreement  to  that  effect)  to  compel  the  trans- 
feree of  the  scrip  to  come  in  and  register  or  indemnify  him  against 
his  liability  to  such  calls,  as  the  law  implies  no  undertaking  under 
such  circumstances  to .  that  effect  on  the  part  of  the  transferee ; 
Jackson  v.  Cocker,  4  Beav.  59  ;  Humble  v.  Langston,  7  M.  & 
VV.  517.  Neither  can  the  original  subscriber,  it  seems,  by  con- 
sequence claim  to  treat  such  refusal  on  the  part  of  his  transferee 
as  an  abandonment  or  forfeiture  of  the  latter's  interest  in  the  con- 
cern, so  as  to  entitle  him  to  insist  as  against  the  company  on 
being  himselfregistered,  and  thereby  enable  himself  to  transfer  his 


Of  Calls.  287 

ceeding,  however  much  intended  by  the  parties  to 

shares  anew,  and  to  relieve  himself  from  the  threatened  respon- 
sibility. In  short  an  original  subscriber,  who  chooses  to  part  with 
his  interest  in  the  concern  without  exacting  from  the  purchaser 
an  express  agreement  to  come  in  and  register,  must  be  considered  as 
it  were  to  guarantee  to  the  latter  the  future  success  of  the  under- 
taking, and  accordingly  must  be  content  to  bear  all  the  responsi- 
bilities, in  the  event  of  the  latter  being  unwilling  to  undertake 
them  by  reason  of  the  apprehended  failure  of  such  undertaking  ; 
though  semble,  in  respect  of  any  calls  which  an  original  sub- 
scriber is  compelled  to  pay  in  consequence,  he  may  be  con- 
sidered to  have  an  equity  to  be  reimbursed  the  amount  out  of 
such  profits  as  the  scheme  may  eventually  produce. 

(3rdly,)  Suppose  the  scripholder  to  be  willing  to  come  in  and 
register  but  the  company  to  refuse  to  register  him  ;  here,  if  by  the 
terms  of  the  subscribers'  agreement,  scrip  certificate,  &c.  the 
power  was  reserved  to  the  managers  to  recognize  transfers  of 
scrip  or  not  at  their  discretion,  the  transferee  cannot,  it  is  con- 
ceived, insist  on  the  company's  registering  him.  The  only  course 
therefore  for  the  parties  to  adopt  would  be  for  the  subscriber 
himself  to  come  in  and  register,  and  then  to  transfer  the  shares 
to  the  purchaser  according  to  the  forms  contemplated  by  the 
act ;  or  else  the  latter,  it  seems,  might  rescind  the  contract 
for  the  purchase  of  the  scrip,  and  recover  back  the  money  paid 
under  it  (see  ante  p.  43,  n.  (c),  and  cases  there  cited).  Where, 
on  the  other  hand,  there  is  no  such  power  reserved  to  the 
managers,  and  consequently  the  purchaser  acquired  an  absolute 
interest  by  the  bare  act  of  transfer ;  there,  it  is  conceived,  the 
transferee  might  maintain  an  action  against  the  company  for 
refusing  to  register  him,  supposing,  that  is  to  say,  he  were  pre- 
pared to  establish  a  bona  fide  title  to  the  scrip  purchased  (see 
10  !M.  &  W.  309,  see  also  ante,  p.  46,  n.  {y),  as  to  necessary 
limitation  of  this  doctrine).  Until  by  one  or  other  of  these 
means  the  purchaser  has  succeeded  in  procuring  himself  to  be 
entered  on  the  register  of  shareholders,  the  original  subscriber 
would  of  course  remain  liable  to  calls. 

2ndly.  The  position  of  a  mere  purchaser  of  scrip  is  easily 
deducible  fronr  the  tenor  of  our  preceding  remarks.     Except 


288  Comjmny  as  constituted  under  the  Act. 

rid  the  shareholder  of  the  obh'gations  imposed  on 
him  as  such,  will  be  ineffectual  for  the  purpose,  (o) 
As  for  instance,  where  certain  persons  subscribed 
for  additional  shares  in  a  company,  in  order  to  make 
up  the  amount  of  subscribed  capital  required  by  a 
standing  order  of  the  House  of  Lords,  and  thereby 
obtain  an  act  of  incorporation,  and  thereupon  signed 
a  declaration  to  the  effect  that  they  held  the  shares 
in  trust  for  the  company,  and  subsequently  at  a 
meeting  of  the  directory  a  resolution  was  passed  to 
that  effect,  and  again,  at  a  special  general  meeting  of 
the  company,  a  further  resolution  was  passed  that 
the  trust  should  be  annulled,  and  the  additional 
shares  be  transferred  to  tlie  secretary,  to  be  held  by 

he  registers,  he  incurs  no  liability  whatever  to  the  company, 
and  this,  in  the  absence  of  an  express  agreement  to  that  effect, 
he  cannot  as  we  have  seen,  be  compelled  to  do.  If  he  comes 
in  and  is  accepted  by  the  company  as  a  shareholder,  he  can 
then  of  course  only  get  rid  of  the  liability  by  a  regular  transfer 
under  the  act. 

II.  Of  the  effect  of  a  transfer  subsequent  to  the  passing  of 
the  act  of  parliament,  but  not  made  according  to  the  forms  pre- 
scribed by  the  act,  or  not  followed  by  the  requisite  ceremonies. 
In  either  case  the  vendor,  it  seeras,  continues  liable  for  calls  to 
the  company  as  long  as  this  state  of  things  continues  ;  and  in  the 
former  case  he  has  no  remedy  against  the  purchaser  to  compel 
an  indemnity  in  the  absence  at  least  of  an  express  agreement  to 
that  effect,  as  the  law  under  such  circumstances  does  not  imply 
a  promise  by  the  purchaser  to  indemnify  the  seller  against  future 
calls  ;  neither  can  an  undertaking  to  that  effect  be  inferred  in 
point  of  fact ;  Humble  v.  Langston,  7  M.  &  W.  517  ;  S.  C.  2 
Railw.  Cas.  533. 

(o)  Preston  v.  The  Grand  Collier  Dock  Company,  2  Railw. 
Cas.  350  ;  S.  C.  11  Sim.  327  ;  Mangles  v.  The  same,  2  Railw. 
Cas.  359;  S.  C.  10  Sim.  519. 


Of  Calls.  289 

him  at  the  disposal  of  the  company,  which  resohi- 
tion  was  confirmed  at  a  subsequent  general  meeting, 
it  was  held  that,  notwithstanding  the  measures  thus 
taken  to  relieve  them,  the  holders  of  the  additional 
shares  were  liable  to  the  payment  of  calls,  (p) 

393.  (2ndly.)  Of  the  effect  of  a  devolution  of  the 
shares  by  the  act  of  the  larv.  Where  a  shareholder 
becomes  a  bankrupt,  or  takes  the  benefit  of  the  In- 
solvent Act,  his  shares  pas-s  to  his  assignees,  subject, 
as  it  should  seem,  to  the  option  on  their  part  of 
rejecting  and  abandoning  such  shares,  if  they  think 
them  likely  to  prove  a  damnosa  hereditas.  If  the 
assignees  choose  to  take  to  the  shares,  they  become 
the  owners,  and  as  such  liable  to  the  burdens  that 
run  with  them,  till  they  again  part  with  them ; 
though  they  may  claim  to  be  reimbursed  the  amount 
of  calls  they  are  forced  to  pay  in  consequence  out 
of  the  estate  they  represent.  If  they  exercise  their 
supposed  option  by  a  rejection  of  such  shares,  the 
shares,  it  is  conceived,  must  be  taken  to  remain 
undivested  in  the  bankrupt,  whose  liability  as  to 
future  calls  continues  the  same  as  it  was  before  the 
bankruptcy,  &c.  For  arrears  of  calls  the  company 
may  of  course  prove  against  the  estate  of  the  share- 
holder. 

394.  (Srdly.)  Of  the  effect  of  the  devolution  of  the 
shares  by  the  act  of  God.  According  to  the  ordinary 
provisions  of  a  railway  act,  the  shares  are  vested 
in  the  several  parties  taking  the  same,  their  execu- 
tors, administrators  and  assigns.  On  the  death 
accordingly  of  a  proprietor,  his  shares  vest  in  his 

(p)  Preston  v.  The  Grand  Collier  Dock  Company,  ubi  supra. 

o 


290         Company  as  constituted  under  the  Act. 

executors,  &c. ;  and  although  they  are  not  in  the 
company's  books  as  executors,  they  become  pro- 
prietors, and  as  such  liable  to  the  provisions  of  the 
act,  and  among  these  to  those  rendering  obligatory  the 
payment  of  calls.  The  provision  for  executors,  &c. 
coming  in  and  claiming  the  benefit  of  the  shares, 
cannot,  it  seems,  be  taken  to  alter  this  state  of 
things,  or  to  operate  in  any  way  to  release  the  de- 
ceased's estate,  being  intended  for  the  benefit  and 
convenience  of  the  company,  and  to  enable  them  to 
ascertain  who  are  the  persons  entitled,  but  not  to 
affect  the  property  in  shares  or  the  liabilities.  An 
action  or  suit  accordingly  is  maintainable  against 
executors  as  well  for  calls  made  in  the  testator's 
lifetime  as  for  those  made  after  his  decease,  {q) 

395.  2ndly.  Of  forfeiture,  (r)  A  second  mode  in 
which  a  party  may  be  relieved  from  his  liability  to 
pay  calls,  is  by  the  directors  declaring  his  shares  for- 
feited under  the  provisions  of  their  statute,  &c.,  such 
act  on  the  part  of  the  directors  being  subsequently 
adopted  and  confirmed  at  a  public  meeting  of  the 
company  within  the  time  appointed  for  that  pur- 
pose, (i)  This  relief  cannot,  it  should  seem,  be 
securely  attained  by  any  other  course  of  proceedings 

(g)  Fyler  v.  Fyler,  2  Railw.  Cas.  813,  6'.  C.  ibid.  873. 

(?■)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16),  on  the  subject  of  forfeiture,  see  act,  s.  29 — 35, 
post,  App. 

(s)  The  Edinburgh,  Leith  and  Newhaven  Railway  Company  v. 
Hebblewhite,  2  Railw.  Cas.  239 ;  S.  C.  6  M.  &  W.  707  ;  The 
Birmingham,  Bristol  and  Thames  Junction  Railway  Company  v. 
Locke,  2  Railw.  Cas.  867  ;  S.C.I  A.  &  E.  N.  S.  256  ;  Lotidon 
and  Brighton  Railway  Company  v.  Fairclough,  2  M.&  Gr.  674, 


Of  Calls.  291 

in  which  the  provisions  of  the  act  as  to  the  forfeiture 
of  shares  are  not  followed,  though  the  intention  of 
the  parties  to  the  transaction  may  be  to  give  the 
party  the  benefit  which  the  act  annexes  to  a  for- 
feiture, {t)  A  party  having  taken  shares  for  the 
accommodation  of  a  company,  it  was  subsequently 
resolved  by  the  directory  that  he  should  be  at  liberty 
to  transfer  such  shares  to  the  company.  A  deed 
was  accordingly  prepared  for  the  purpose,  which 
the  party  executed,  thereby  purporting  to  forfeit  and 
relinquish  his  shares  to  the  company,  who  agreed  to 
accept  the  same .  The  Lord  Chancellor  held  that, 
though  it  was  clear  that  what  was  intended  was  to 
relieve  the  party  from  any  future  liability  to  calls, 
still  that  great  difficulty  existed  as  to  how  that 
expectation  could  be  realized  as  against  the  com- 
pany, (m) 

39(5.  V.  Requisites  of  calls,  (r)  Lastly,  calls  must 
be  made  in  compliance  with  the  requisites  prescribed 
by  the  statute,  or  the  company  can  have  no  right  to 
recover  them.  These  requisites  relate  to  the  persons 
by  wliom  or  those  upon  whom,  or  the  time  when  calls 
are  to  be  made,  or  to  their  amount,  or  to  the  mode  of 
making  them  and  the  attendant  formalities, 

i)97.  First,  then,  the  calls  must  appear  to  be 
made  by  the  parties  to  vjhom  the  autJtoritij  for  that 
purpose  is  given  by  the  act.  But  where  by  an  act 
the  power  to  make  calls  was  given  to  the  directors 

(0  Playjuir  v.  The  Birmingham,  Bristol  and  Thames  Junction 
Railway  Company,  1  Railw.  Cas.  640. 

(u)  Ibid. 

(x)  See  Companies  Clauses  Consolidation  Act(8  Vict. c.  16), 
s.  22,  post,  App. 

0  2 


292        Company  as  constituted  under  the  Act. 

and  the  calls  on  the  face  of  them  purported  to  be 
made  by  the  court  of  directors,  it  being  objected 
that  in  making  the  calls  the  directors  acted  in  a  dif- 
ferent capacity  from  that  in  which  they  were  em- 
powered to  make  calls,  (y)  it  was  nevertheless  held 
to  be  good,  the  act  apparently  using  the  different 
terms  in  question  indiscriminately.  Assuming  calls 
to  be  made  by  persons  who  have  been  allowed  to 
act  in  the  character  which  authorizes  them  to  make 
calls,  it  would  not,  it  is  conceived,  looking  at  the 
visual  provisions  of  railway  acts  on  this  subject,  be 
competent  for  a  shareholder  to  resist  payment  of 
such  calls  on  the  gi-ound  of  those  persons  being  de 
jure  disqualified.  (~) 

398.  Persons  ujoon  whom  calls  to  he  made.  Again, 
the  calls  must  be  made  on  the  persons  contemplated 
by  the  act  of  parliament.  Looking  at  the  usual  pro- 
visions of  a  railway  act,  it  is  impossible  not  to  see 
that  it  is  the  intention  of  the  legislature  that  those 
who  become  shareholders  should  all  of  them  pay 
rateably.  It  is  the  duty  accordingly  of  the  directors 
to  make  calls  on  all  equally,  and  this  rule  extends 
not  merely  to  the  ordinary  shareholders,  but  to 
parties  taking  shares  in  trust  for  the  company.  A 
shareholder,  however,  cannot  evade  payment  of  calls 

( v)  The  Southampton  Dock  Company  v.  Richards,  1  M,  &  Gr. 
448  ;  S.  C.  2  Railw.  Cas.  222. 

(s)  See  judgment  of  Tindal,  C.  J.  in  Thames  Haven  Railway 
Company  v.  Hall,  5  M.  &  Gr.  274;  but  see  Sheffield,  Ashton- 
under-Lvne  and  Manchester  Railway  Company  v.  Woodcock,  2 
Railw.  Cas.  527  ;  S.  C.  7  M.  &c  W.  574  ;  and  the  judgment  of 
the  Vice-Chancellor  in  Mangles  v.  The  Grand  Collier  Dock 
Conpany,  2  Railw.  Cas.  359  ;  S.  C.  10  Sim.  519. 


Of  Calls.  293 

on  the  ground  of  this  duty  not  having  been  properly 
fulfilled,  though  the  directors  might  be  compellable 
to  correct  their  error,  and  put  all  the  shareholders 
on  an  equal  footing  in  respect  of  the  calls  to  be 
made  on  them,  {a) 

399.  As  to  the  time  of  making  calls.  In  general 
the  time  of  making  this  or  that  particular  call  is  left 
to  the  discretion  of  the  directors,  subject,  however, 
to  a  certain  condition  as  to  the  aggregate  amount  of 
such  calls  in  any  one  year,  and  the  interval  that 
must  elapse  between  each  of  the  successive  calls. 
If  either  of  these  requisites  be  disregarded  in  the 
making  of  a  call,  payment  of  it  cannot  be  en- 
forced, (b) 

400.  The  amount  of  each  several  call  is  another 
requisite  in  general  prescribed  by  the  statute,  a  non- 
compliance with  which  is  destructive  of  the  validity 
of  a  call. 

401.  Lastly.  As  to  the /orma/iiies  to  be  observed 
in  making  calls,  &c.  Here  the  first  step  to  be 
noticed  is  the  resolution  of  the  directory,  which  in 
general  amounts  to  a  mere  announcement  of  a  call 
of  a  given  amount  per  share  being  made  on  the  pro- 
prietors, &c.,  payable  on  such  a  day.  The  resolution 
in  general  is  required  to  be  and  is,  in  point  of  fact, 
followed  up  by  a  notice,  (c)  specifying  the  time  and 
place  of  payment,  and  the   party  to  whom  it  is  to 

(a)  Mangles  v.  The  Grand  Collier  Dock  Company,  2  Railw. 
Cas.  359;  S.  C.  10  Sim.  519. 

(b)  Stratford  and  Moreton  Railway  Company  v.  Slratton,  2 
B.  &  Ad.  518. 

(c)  See  Companies  Clauses  Consolidation  Act  (8  Vict.  c.  16, 
s.  22)  post,  App. 


294       Company  as  constituted  under  the  Act. 

be  made.  The  resolution  ought  to  be  so  worded  as  to 
embrace  all  the  parties  liable  to  the  payment  of  calls. 
Accordingly,  where  the  statute,  in  describing  the 
parties  liable  to  pay  calls,  distinguishes  between  dif- 
ferent classes  of  persons,  the  call  should  be  framed 
in  language  applicable  to  them  all ;  but  where  the 
terms  of  the  statute,  though  varied,  are  obviously 
employed  indiscriminately,  and  point  to  the  same 
set  of  persons,  then  the  employment  of  one  of  such 
terms  by  the  directors  in  their  resolutions  is  sufficient, 
as  it  must  be  taken  to  include  the  others,  (d) 

402.  A  resolution  to  make  a  call  prospectively  is 
good,  at  least  where  there  is  nothing  in  the  statute 
requiring  the  directors  to  make  the  calls  imme- 
diately ;  because  the  exigencies  of  the  company, 
and  the  nature  of  their  debts  and  engagements,  may 
well  be  such  that  the  amount  of  calls  would  as  cer- 
tainly be  wanting  at  a  future  day  as  on  the  very  day 
when  the  resolution  is  made,  (e) 

403.  According  to  the  usual  provisions  of  a  rail- 
way act,  the  insertion  of  a  time  and  place  of  pay- 
ment and  the  payee's  description,  is  not  essential  to 
the  validity  of  the  resolution  of  the  directors;  provided 
these  particulars  are  sufficiently  notififed  to  the  share- 

(d)  The  West  London  Railway  Company  v.  Bernard,  22  Law 
Journ.  Q.  B.  68  ;  S.C.  but  not  S.P.  3  A.  &  E.  N.  S.  876;  see 
also  London  Grand  Junction  Railway  Company  v.  Freeman, 
2  Railw.  Cas.  468  ;  S.  C.  2  M.  &  Gr.  606 ;  Great  Narth  of  Eng- 
land  Railway  Company  v.  Biddulph,  2  Railw.  Cas.  401  ;  5.  C. 
7M.  &  W,243. 

(e)  The  Sheffield,  Ashton-itnder-Lyne,  a7id  Manchester  Railway 
Company  v.  Woodcock,  2  Railw.  Cas.  531  ;  S.  C.  7  M.  &  W. 
574. 


Of  Calls.  295 

holders  in  the  subsequent  advertisement,  [f)  Neither 
is  it  necessary,  in  order  that  the  latter  document  may 
thus  operate  as  supplementary  to  the  former,  to  show 
the  authority  of  the  secretary,  &c.  to  make  the  pub- 
lication ;  because  such  an  authority  by  the  directors 
must  be  presumed  as  an  act  obviously  within  the 
scope  of  their  duty,  or,  at  all  events,  that  they  adopted 
the  officer's  act,  unless  the  contrary  is  shown.  (^) 

(/)  Ibid.  ;  see  also  The  Great  North  of  'England  Railway 
Company  v.  Biddulph,  ubi  supra ;  The  London  and  Brighton 
Railivay  Company  v.  Fairclough,  2  Railw.  Cas.  545  ;  S.  C.  2 
M,  &  Gr.  674. 

(^)  London  and  Brighton  Railway  Company  v.  Fairclough, 
ubi  supra. 


(     296     ) 

CAP.  IV. 

Of  the  Construction  (a)  of  the  Railway. 


404.  In  the  construction  of  the  railway  the  com- 
pany must  take  care  to  adhere  to  the  parliamentary 
line,  or  at  any  rate  not  to  deviate  beyond  the  limits 
permitted  by  their  act.  (6)  They  must  likewise 
conduct  their  works,  excavations,  &c.  with  all  rea- 
sonable skill  and  care,  so  as  to  avoid,  as  far  as  is 
possible,  endangering  adjoining  property,  (c)  More 
particularly  they  must  be  cautious  not  to  do  any 
thing  to  the  detriment  of  any  species  of  property 
which  is  protected  by  their  act.((?)  And,  generally, 
in  the  conduct  of  their  operations,  they  must  comply 
with  the  various  conditions  imposed  by  the  legis- 
lature on  the  exercise  of  their  powers  of  making  the 
railway,  (e) 

(a)  As  to  provisions  of  Railway  Clauses  Consolidation  Act 
(8  Vict.  c.  20)  on  this  head,  see  act,  ss.  6 — 24,  post,  App. 

(6)  See  ante,  p.  76,  et  seq. 

(c)  See  ante,  pp.  180,  181. 

(rf^  Turner  v.  Sheffield  and  Rolherham  Railway  Company^  10 
M.  &  W.  425. 

(e)  Under  the  5  &  6  Vict.  c.  9,  s.  11,  money  may  be  ad- 
vanced at  interest  or  otherwise  out  of  the  consolidated  fund  to  a 
limited  amount,  to  any  corporate  body  or  company  of  proprie- 
tors, or  any  person  or  persons  engaged  in,  &c.  any  public  works 
carried  on  under  the  authority  of  parliament,  or  to  any  trustee  or 
trustees  of  roads  or  railways,  subject  to  such  conditions  respec- 


Of  the  Construction  of  the  Railway.  297 

tively,  and  upon  such  securities,  as  are  prescribed  by  the  various 
acts  authorizing  loans  of  Exchequer  bills  for  public  works. 

Whenever  the  appointment  of  special  constables  ('see  1  &  2 
W.  4,  c.  41,  and  5  &  6  W.  4,  c.  43)  has  been  occasioned  by  the 
behaviour  or  by  reasonable  apprehension  of  the  behaviour  of  per- 
sons employed  on  any  railway  or  other  public  work  carried  on 
under  the  authority  of  parliament,  any  two  or  more  j  ustices  usually 
acting  for  the  district,  &c.  within  which  such  works  are  carried  on, 
may  make  an  order  on  the  treasurer  or  other  officer  having  the 
control,  &c.  of  tlie  funds  of  the  company  making  the  railway,  &c., 
for  the  payment  of  the  reasonable  expenses  incidental  thereto  (1 
&:  2  Vict.  c.  80,  s.  1.)  The  Secretary  of  State  may  disallow  the 
order,  or  reduce  the  amount  if  excessive.  For  corresponding 
enactments  as  to  railways  in  Ireland,  see  stat.  8  &  9  Vict.  c.  46, 
which  provides  for  the  appointment  of  additional  constables  for 
keeping  the  peace  and  the  protection  of  property  near  railways, 
the  payment,  recovery  or  levying  of  expenses  incidental  thereto, 
&c. ;  see  also  stat.  6  Sc  7  W.  4,  c.  13. 


0  5 


(     298     ) 


CAP.  V. 

Of  the  User  of  the  Raibvay. 


Sect.  I. — Of  the  User  generally. 
II.— Of  the  Right  to  Tolls. 

III. — Of  the  Traffic  on  the  Railway,  and  herein  of  the  Com- 
pany viewed  as  Carriers. 

1.  Of  Goods. 

2.  Of  Passengers. 


Sect.  1. — Of  the  User  generally. 

405.  Assuming  the  railway  and  all  necessary  works 
to  be  constructed,  it  is  proposed  in  the  next  place 
to  treat  of  the  provisions  made  for  the  use  of  such 
railway.  The  general  principle  by  which  the  legis- 
lature has  been  guided  in  framing  the  usual  pro- 
visions found  in  railway  acts  on  this  head  appears 
to  have  been  this,  viz.  to  secure  to  the  public  the 
most  beneficial  use  of  the  railway  that  is  consistent 
with  a  due  regard  to  the  interest  of  the  railway 
company,  and  their  adequate  remuneration  for  the 
expenses  necessarily  incidental  to  the  undertaking. 
With  this  view,  a  railway  act  usually  enacts,(a)  that 
all  persons  shall  have  free  liberty  to  use  the  railway, 
with  carriages  properly  constructed,  upon  payment 

(a)  See  Railway  Clauses  Consolidation  Act  (8  Vict.  c.  20), 
s.  92,  post,  App. 


Of  the  User  generally.  299 

of  the  rates  and  tolls  demandable  by  the  company, 
and  subject  to  the  rules  and  regulations  which  they 
shall  from  time  to  time  make,  under  the  authority  of 
their  act.  The  effect  of  such  an  enactment  is  to 
constitute  the  railway,  in  point  of  law,  a  highway 
on  which  all  the  world  have  a  right  to  carry  goods 
and  passengers  ;  though  in  point  of  fact,  the  exer- 
cise of  the  right  is  to  a  great  extent  impracticable, 
as  well  from  the  want  of  any  corresponding  provision 
with  regard  to  (5)  stations,  warehouses,  &c.,  as  from 
the  nature  of  the  mode  of  conveyance,  which  must 
ever  forbid,  not  merely  all  competition  of  rival  car- 
riers, but  even  the  free  use  of  the  railway  by  private 
carriages,  (c) 

406.  In  thus  throwing  open  the  railway  to  the  pub- 
lic the  legislature  has,  at  the  same  time,  been  careful 
to  provide  for  the  interests  of  the  company  by  em- 
powering them  not  only  to  take  certain  tolls  for  the 
tonnage  of  goods,  &c.,  but  themselves  to  become 
carriers(c^).  By  virtue  of  the  above  provisions  a  two- 
fold state  of  things  may  arise,  either  the  company 
may  be    simply   the  owners  of  the  way  on  which 

(6)  Under  this  state  of  the  law  which  gives  the  public  no  right 
of  access  to  the  yards,  stations,  &c.  of  railway  companies,  al- 
though the  railway  itself  is  thrown  open  to  the  public  as  a  high- 
way, semble,  the  directors  of  these  companies  may  be  taken  to 
have  unlimited  discretion  in  regard  to  the  admission  or  exclusion 
of  public  conveyances,  &c.  from  access  to  their  stations,  &c.  See 
Rep.  of  Officers  of  the  Railw.  Dep.  for  1842,  pp.  xx,  xxi. 

(c)  Judgment  of  Lord  Denman,  C.  J.,  in  Reg.  v.  London  and 
South  Western  Railway  Company,  1  A.  &  E.  N.  S.  575.  See 
also  judgment  of  Wigram,  V.  C,  in  North  Union  Railway  Com- 
fany  v.  Bolton  and  Freston  Railway  Company,  3  R.  Cas.  364. 

(d)  See  Railway  Clauses  Consolidation  Act  (8  Vict.  c.  20), 
s.  86  et  seq.  post,  App. 


300  Of  the  User  of  the  Railway. 

others  place  steam-power  and  carriages,  and  convey 
persons  and  goods,  in  which  -case  the  two  parties 
would  stand  much  in  the  same  relation  to  each  other 
as  the  trustees  of  a  turnpike  road  and  the  coach  and 
postmasters  conveying  passengers  on  it;  or  the  com- 
pany may  avail  themselves  of  the  latter  clause  and 
"unite  both  characters  of  owners  of  the  way  and 
carriers  on  it.(e) 


Sect.  2.— Of  Tolls. 

I. — Of  the  general  Nature  and  Extent  of  the  Right  to  Tolls. 
II. — How  it  may  be  defeated. 

407.  I.  As  to  the  nature  and  extent  of  the  com- 
pany's right  to  tolls.  An  inquiry  into  the  nature 
and  extent  of  the  company's  right  to  tolls  involves 
various  points,  viz.  what  description  of  article,  &c.  is 
the  subject  of  toll  within  the  provisions  of  the  com- 
pany's act ;  or,  if  tolls  varying  in  amount  or  tolls  of 
a  different  character  are  imposed  on  the  same  article, 
whether  the  one  toll  is  to  be  construed  as  cumulative 
and  additional  over  and  above  the  other,  and  if  not, 
which  of  the  two  is  the  one  payable  in  the  particular 
case,  &c.  The  principle,  however,  by  which  the 
decision  must  be  governed  in  all  these  cases  is 
uniformly  the  same,  viz.  that,  to  entitle  the  company 
to  toll,  there  must  be  a  plain  declaration  of  the  in- 

(e)  Ibid.  There  is  a  third  and  intermediate  state  of  things 
-wJiich,  though  it  has  not  been  thought  necessary  to  notice  it  in 
the  text,  in  point  of  fact  has  arisen  in  some  instances,  viz. 
where  the  company  supply  the  steam  power  but  do  not  carry. 


OJ  Tolls  301 

tention  ot  the  legislature  to  impose  it ;  (/)  and  con- 
sequently if  the  language  of  the  act  is  ambiguous, 
or  admits  of  different  meanings,  that  constrction  is 
to  be  adopted  which  is  most  favourable  to  the  inte- 
rest of  the  public  and  against  the  company,  {g) 

408.  A  railway  company  were  empowered  by  their 
act  to  demand  the  following  tolls :  upon  all  coals, 
&c.  carried  along  the  railway,  a  toll  not  exceeding 
fourpence  per  ton  per  mile,  &c. ;  for  all  articles,  &c. 
for  which  a  tonnage  was  thereinbefore  directed  to  be 
paid,  which  should  pass  certain  inclined  planes  upon 
the  company's  railway,  a  sum  not  exceeding  one 
shilling  per  ton  ;  and  for  all  coal  shipped  for  ex- 
portation in  the  port  of  A.,  a  toll  not  exceeding  one 
halfpenny  per  ton  per  mile.  It  was  held,  that  the 
lower  toll  of  one  halfpenny  was  not  to  be  construed 
as  a  cumulative  toll  over  and  above  the  higher,  but 
that  the  proper  construction  of  the  above  provision 
was  to  hold  that  the  latter  branch  thereof  excepted 
the  coals  therein  described  out  of  the  operation  of 
the  general  words  of  the  first  branch,  and  imposed 
the  lower  duty  thereon  in  lieu  of  the  higher,  and  also 
that  all  coals  shipped  for  London,  at  a  place  within 
the  legal  port  of  A.,  but  at  some  distance  from  the 
town  of  A.,  were  coals  shipped  for  exportation  in 
the  port  of  A.  within  the  meaning  of  the  latter 
branch  of  the  provision  so  as  to  be  entitled  to  the 
benefit  of  the  reduction,  and  this  though  in  a  former 
part  the  act  spoke  of  the  port  and  town  of  A.(;0-) 

(  /")  Judgment  of  Lord  Ellenborough,C.  J.,  in  Gildart  v.  Glud- 
stone,  11  East,  675;  judgment  of  Tindal,  C.  J.,  in  Ba?-?-eU  v. 
The  Stockton  and  Darlington  liailway  Company,  2  M.  &  Gr. 
165. 

(g)  Barrett  v.  The  Stockton  and  Darlington  Railway  Company, 
2  M.  &  Gr.  134  ;  S.  C,  in  error,  3  M.  &  Gr.  956. 


302  0/  the  User  of  the  Railway. 

409.  The  above  principles  of  interpretation  are 
not  to  be  pushed  to  such  an  extent  as  to  defeat  the 
company's  right  to  toll,  where,  upon  the  fair  con- 
struction of  the  words  of  the  act,  the  intention  of 
the  legislature  to  impose  the  toll  is  sufficiently^  clear. 
Thus,  in  the  case  above  referred  to,  it  was  held  that 
the  duty  payable  in  respect  of  passing  the  inclined 
plane  was  clearly  intended  to  be  superadded  to  the 
distance  duty  in  all  cases  where  coals  passed  over 
the  inclined  plane,  and  was  therefore  payable  as 
well  on  coals  intended  for  exportation  as  others.  {Ii) 
And  again,  where  an  act  provided  that  every  car- 
riage conveying  passengers  was  to  be  charged  a  cer- 
tain tonnage  per  mile,  it  was  held  that  the  duty  was 
payable  on  the  combined  weight  of  the  carriage  and 
passengers,  the  fair  interpretation  being  that  the 
tonnage  was  to  be  taken  upon  the  carriage  with  the 
passengers  upon  it,  and  that  the  words  "  conveying 
passengers"  were  not  merely  descriptive  of  the  car- 
riages but  indicative  of  the  matters  that  were  to  be 
weighed,  and  to  be  in  that  respect  subjected  to  a 
tonnage,  (i) 

410.  II.  As  to  the  manner  in  which  the  right  to 
tolls,  supposing  it  to  exist,  may  he  defeated.  To 
take  away  a  vested  right  to  tolls,  there  must,  it 
seems,  be  a  clear  declaration  of  the  purpose  of  the 
legislature  to  that  effect ;  it  cannot,  therefore,  in 
general,  be  done  by  way  of  inference,  (k)  but  only 
by  express  words.  An  embankment  company  were, 
by  an  act  of  parliament,  authorized  to  make  a  road, 
and  to  erect  turnpikes  across  any  ways  leading  or 

(/i)  See  ante,  p.  301,  n.  {g). 

(i)  The  Edinburgh  and  Dalkeith  Railway  Company  v.  Wau- 
chope,  3  Railw.  Cas.  23'2. 

(k)  Rowe  V.  Shilson,  4  B.  &  Ad.  726. 


Of  Tolls.  303 

that  might  thereafter  lead  out  of  the  same,  and  to 
take  tolls  at  such  turnpikes.  By  subsequent  acts, 
another  company  were  empowered  to  make  a  rail- 
road, which  was  to  be  open  to  the  public  on  pay- 
ment only  of  such  tolls  as  the  railway  company 
should  demand  under  the  powers  of  their  act ;  the 
railroad  was  made,  and  crossed  the  embankment 
company's  road.  It  was  held  that  the  embankment 
company  were  entitled  to  demand  a  toll  from  all 
persons  who  passed  on  the  railway  across  their  road, 
the  clause  in  favour  of  the  public  in  the  railway  act 
not  taking  away  the  vested  right  of  the  embankment 
company  to  their  tolls.  (/) 


Sect.  3. — Of  a  Raibvaij  Company  viewed  as  Carriers, 
I.— Of  Goods. 
II. — Of  Passengers. 

Sub-Sect.  1. — Of  a  Railway  Company  viewed  as 
Carriers  of  Goods,  (jn) 

411.    In   treating    of  a  railway  company  in  the 

(0  See  ante,  p.  302,  n.(/c). 

(m)  If  a  carrier  undertakes  to  convey  goods,  and  avails  him- 
self of  a  railway  for  tlie  purpose,  he  is  himself  liable  for  any 
accident  that  may  happen  to  the  goods  in  the  course  of  that  mode 
of  conveyance,  and  the  ovv'ner  is  not  bound  to  look  to  the  railway 
company.  Draper  v.  Shiirmer,  Taunton,  April  14,  1841.  The 
plaintiff,  a  lace  manufacturer,  despatched  a  bale  of  lace,  directed 
to  go  by  the  defendant's  waggon  from  Bristol  to  Birmingham,  be- 
tween which  places  the  defendant  was  a  carrier.  At  Cheltenham 
the  waggon  was  put  upon  the  Birmingham  and  Cheltenham  Rail- 
way, and  a  spark  from  the  engine  lighted  on  the  tarpauline,  and 
the  goods  were  burned.  The  substantial  point  raised  was,  whe- 
ther a  party  undertaking  to  convey  goods,  and  availing  himself 


304  Of  the  User  of  the  Railway. 

capacity  of  carriers  of  goods,  there  are  six  points  to 
be  considered:  1st,  what  are  the  duties  and  obliga- 
tions of  a  railway  company  viewed  in  their  capacity 
of  carriers  ;  2ndly,  what  are  the  risks  for  which  they 
are  liable  at  common  law  ;  3rdly,  the  commencement 
and  termination  of  those  risks  ;  4thly,  the  effect  of 
special  contracts,  and  of  particular  enactments  of  the 
legislature;  othly,  what  will  excuse  or  justify  the 
company's  nondelivery  of  the  goods  ;  and  lastly,  the 
general  rights  of  the  company  in  that  capacity. 

412.  First,  then,  of  the  duties  and  obligations  of  a 
railway  company  as  common  carriers.  One  of  their 
duties  is  to  receive  and  carry  all  goods  offered  for 
transportation  on  receiving  a  suitable  hire;  (??)  hence, 
if  they  will  not  carry  goods  for  a  reasonable  com- 
pensation, upon  an  offer  thereof,  (o)  and  a  refusal 
of  the  goods,  tliey  become  liable  to  an  action,  unless 
there  is  reasonable  ground  for  their  refusal.  But  if 
the  goods  tendered  them  are  of  a  sort  which  they  are 
not  accustomed  to  carry,  or  which  they  have  no  con- 
venient means  of  carrying  with  security,  {p)  or  they 
are  brought  at  an  unreasonable  time,  those  would 

of  a  railway,  with  the  knowledge  of  the  owner,  was  himself  liable 
for  any  accident  that  might  occur  in  the  course  of  that  mode  of 
conveyance,  or  whether  the  owner  was  to  look  to  the  railway 
company.  The  plaintiff  had  a  verdict  for  the  full  amount  of  his 
goods. 

(n)  Ex  farte  Robins,  1  Dowl.  P.  C.  566. 

(o)  Pickford  V.  The  Grand  Junction  Railway  Company.  2 
Railw.  Cas.  592  ;  S.C.8  M.  &  W.  372. 

(p)  Railway  Companies  are  not  in  general  bound  to  provide 
means  of  carrying  every  possible  description  of  goods,  &:c.,  but 
they  have  a  discretionary  power  in  this  respect.  The  Liverpool 
and  Manchester  Company  however  constitutes  an  exception  to 
this  rule.    See  stat.  7  Geo.  4,  c.  49,  s.  138  ( Local  and  Personal). 


Of  a  Railway  Company  viewed  as  Carriers.     305 

seem  to  furnish  reasonable  grounds  for  the  com- 
pany's refusal  to  take  charge  of  the  goods,  and  would, 
accordingly,  if  true,  be  a  good  defence  to  an  action 
for  the  non-carriage  of  the  goods,  (y) 

413.  Another  duty  of  the  company,  viewed  as 
carriers,  is  to  provide  suitable  engines  and  carriages 
for  the  transportation  of  the  goods,  (r)  together  with 
all  reasonable  equipments,  and  proper  servants  to 
take  care  of  them  ;  they  are  also  bound  to  take  the 
utmost  care  of  the  goods  from  the  moment  of  re- 
ceiving them,  to  forward  (s)  them  with  all  reasonable 

(5)  Storey  on  Bailments,  sect.  508. 

(7-)  Accordingly,  where  an  animal  is  sent  by  a  train,  the  com- 
pany are  liable  for  any  injury  that  it  may  sustain,  either  by  rea- 
son of  the  improper  construction  of  the  carriage,  Sec.  in  which  it 
is  placed,  or  the  improper  position  of  such  carriage,  &c.  in  the 
train.  So  ruled  by  Lord  Denman,  C.  J.,  in  Walker  v.  London 
and  South  Western  Railway  Company,  Kingston  Spring  Assizes, 
1843. 

(s)  Where  a  railway  company  give  notice  by  a  board  over 
the  door  of  their  warehouse,  that  goods  delivered  after  a  parti- 
cular hour  will  go  forward  the  next  working  day,  it  has  been 
ruled  that  they  are  not  bound  to  forward  goods  received  after 
that  hour  the  same  evening,  and  accordingly  cannot  be  made 
liable  for  failing  to  do  so  without  proof  of  a  special  contract  to 
that  effect ;  Pickjord  v.  Grand  Junction  Railway  Company,  tried 
at  the  Guildhall  Sittings  after  H.  T.  1844.  As  to  what  sufficient 
evidence  to  go  to  the  jury  of  such  a  contract,  see  same  case, 
12  M.  &  W.  766.  Audeline  v.  London  and  South  Western  Rail- 
way Company,  N.  P.  Dec.  17,  1841.  The  question  was  as  to 
the  liability  of  the  company  for  the  loss  upon  certain  baskets  of 
plums,  incurred  through  delay  in  delivering  the  same.  The 
company  resisted  the  claim  on  the  ground  that  the  fault  lay  with 
an  intermediate  agent,  from  whom  the  company  received  them, 
and  who  misdirected  the  company  as  to  the  amount  to  be  charged 
for  them.  It  appeared  however  that  some  ten  minutes  before 
the  starting  of  the  train  by  which  tiie   goods  were  to  go,  fresh 


306  Of  the  User  of  the  Railway. 

speed,  to  obey  the  directions  of  the  owner  in  respect 
of  tiiem,  to  carry  them  safely  to  their  place  of  desti- 
nation, and  to  make  a  right  delivery  of  them  there 
according  to  the  usage  of  trade  or  the  course  of 
business.  {() 

414.  2ndly.  Of  the  risks  for  which  the  company 
are  liable  by  the  common  law.  A  railway  company, 
by  receiving  goods  for  the  purposes  of  carriage,  place 
themselves  on  the  footing  of  common  carriers,  (u) 
They  are  responsible,  accordingly,  for  all  losses,  ex- 
cept those  occasioned  by  the  act  of  God,  or  of  the 
queen's  enemies,  (w)  By  enemies  are  to  be  understood 
public  enemies,  (x)  Under  the  head  of  losses  by 
the  act  of  God  would  seem  to  be  comprehended  all 
misfortunes  and  accidents  arising  from  inevitable 
necessity,  which  human  prudence  could  not  foresee 
or  prevent,  such,  for  instance,  as  losses  occasioned 
by  natural  causes,  viz.  lightning,  earthquakes,  tem- 
pests, and  the  like,  {y) 

415.  3rdly.  As  to  the  commencement  and  termi- 
nation of  the  risks  of  a  railway  company  as  common 
carriers;  and  (1st,)  of  the  commencement  of  the  risk. 

directions  were  given  to  the  company  correcting  the  mistake. 
The  judge  directed  the  jury  that  in  his  opinion  the  fresh  instruc- 
tions being  sufficiently  intelligible,  and  being  received  the  spe- 
cified time  before  the  train  started,  the  company  were  bound  to 
have  corrected  the  charge,  for  which  there  was  ample  time,  and 
that  consequently  they  must  be  taken  to  have  received  the  goods 
upon  a  contract  to  deliver  them  on  payment  of  the  altered  and 
not  the  original  charge.    Verdict  for  the  plaintiff. 

(t)  Storey  on  Bailments,  sect.  509. 

(u)  Palmer  v.  Grand  Junction  Railway  Company,  4  M.  & 
W.  752. 

(i)  Storey  on  Bailments,  sect.  526. 

(y)  Ibid.  sect.  511. 


Of  a  Railway  Com'pany  viewed  as  Carriers.     307 

The  liability  of  the  company  as  carriers  attaches  from 
the  time  of  their  acceptance  of  the  goods,  whether 
that  acceptance  is  in  a  special  manner  or  according 
to  the  usage  of  their-business.  The  usual  mode  is 
by  a  delivery  of  the  goods  to  the  servants  of  tbe 
company,  or  to  some  other  person  authorized  to  act 
on  their  behalf;  and  as  soon  as  the  delivery  is  com- 
plete, the  responsibility  of  the  company  as  carriers 
commences.  An  acceptance  in  some  way,  actual  or 
constructive,  is  indispensable  to  charge  the  com- 
pany. (2) 

41 6.  (2dly.)  Of  the  termination  of  the  risk  ;  as  soon 
as  all  is  done  with  the  goods  that  the  duty  of  the 
company  as  carriers  requires  them  to  do,  their  re- 
sponsibility as  such  ceases.  If  the  company  receive 
goods  to  be  carried  to  the  place  of  their  destination, 
and  there  deposited,  as  soon  as  the  goods  arrive  at 
the  place  in  question,  and  are  deposited  in  the  com- 
pany's warehouses,  their  responsibility  as  carriers 
ceases,  that  being  the  terminus  of  their  duty  as  such. 
But  if  it  is  the  duty  of  the  company  to  deliver  the 
goods  to  the  consignees  at  the  place  of  their  desti- 
nation, then  their  liability  as  carriers  does  not  cease 
by  such  deposit ;  but  they  are  chargeable  for  any 
loss  which  may  occur  until  an  actual  delivery  to  the 
party,  (a) 

417.  With  regard  to  the  extent  of  the  company's 
duty  in  the  matter  of  delivering  the  goods,  it  would 
seem  that  in  general  the  company  are  bound  to  deli- 
ver them  according  to  the  address  that  is  upon  them, 
and  consequently  can  only  discharge  themselves  by 

{2)  Storey  on  Bailments,  sects.  532,  533. 
(a)  Ibid,  sects.  538,  539. 


308  Of  the  User  of  the  Railway. 

such  a  delivery.  (6)  This  general  liability,  however, 
may  in  particular  instances  be  limited  by  a  special 
contract  between  the  parties,  or,  as  it  should  seem, 
by  some  local  custom  or  usage  of  trade,  (c) 

*il8.  If  a  company  take  charge  of  goods  directed 
to  a  particular  place,  and  do  not  by  positive  agree- 
ment limit  their  responsibility  to  a  part  only  of  the 
distance,  that  is  prim^  facie  evidence  of  an  under- 
taking to  carry  them  to  the  place  to  which  they  are 
directed,  even  although  that  place  avowedly  be  be- 
yond the  known  limits  of  the  company's  business  as 
carriers.  ((/) 

419.  4thly.  Of  the  effect  of  special  contracts,  or 
particular  statutory  enactments,  in  qualifying  the 
above  liabilities,  &c.  of  a  railway  company.  And 
1st,  of  special  contracts.  A  railway  company  may, 
it  is  conceived,  like  any  other  common  carrier,  insist 
on  special  and  qualified  terms  on  receiving  goods 
for  the  purpose  of  carriage ;  (e)  and  in  this  case, 
their  liability  will  of  course  be  measured  by  the 
particular  terms  of  the  contract.  The  usual  practice 
of  a  railway  company  in  this  respect  is,  upon  the 
receipt  of  goods,  to  deliver  to  the  consignee  a  ticket 
explaining  the  terms  upon  which  they  are  willing  to 

(fc)  Judgment  of  Lord  Denman,  C.  J.,  in  Syms  v.  Chaplin,  5 
A.  &;  E.  642  ;  Hyde  v.  Trent  and  Mersey  Navigation  Company, 
5  T.  R.  389,  by  three  judges,  Lord  Kenyon,  C.  J.,  dissenting  ; 
Golden  v.  Manning,  3  Wils.  429  ;  Storr  v.  Crowley,  M'Clel.  & 
Y.  129. 

(c)  Storey  on  Bailments,  sects.  540,  541,  543. 

(d)  Muschamp  V.  Lancaster  arid  Preston  Junction  Railway 
Company,  2  Railw.  Cas.  607  ;  S.  C.  8  M.  &  W.  421. 

(e)  See  argument  of  counsel  in  Pickford  v.  Grand  Junction 
Eailuay  Company,  10  M.  &  W.  399. 


Of  a  Raihvay  Company  viewed  as  Carriers.  309 

accept  them.  (/)  Proof  of  the  delivery  on  the  one 
side  and  the  acceptance  on  the  other  of  such  a  ticket 
would  seem  sufficient  to  constitute  a  special  con- 
tract. (/)  If  there  is  no  proof  of  the  production 
and  delivery  of  the  ticket  to  the  other  party,  the 
ground  of  exemption  fails,  and  the  company  conse- 
quently must  be  taken  to  stand  on  the  ordinary 
footing  of  carriers  at  common  law.  (/)  But  the 
company  cannot,  it  seems,  by  any  special  agreement 
so  limit  their  responsibility  as  to  evade  altogether 
the  salutary  policy  of  the  common  law.  {g)     They 

(/)  Palmer  V.  The  Grand  Junction  Railway  Company,  4  M. 
&  W.  752. 

(g)  See  Report  of  Officers  of  Railway  Department  of  Board 
of  Trade,  (1842,  p.  xix.)  which  contains  the  following  remarks 
upon  this  point : 

"  The  carriers'  act  distinctly  provides  that  no  general  notice 
shall  limit  the  liability  of  common  carriers  with  regard  to  objects 
other  than  those  enumerated  in  the  act,  and  the  proper  rule 
appears  to  be,  that  although  railway  companies  may  refuse  to 
take  charge  of  passenger's  luggage,  unless  such  reasonable  regu- 
lations as  they  find  necessary  to  lay  down  are  complied  with, 
yet  that,  if  they  do  actually  take  charge  of  such  luggage,  they 
incur  the  ordinary  common  law  liability  of  carriers,  subject  only 
to  the  limitations  of  the  carriers'  act. 

"  The  same  principles  apply  to  regulations  limiting  the  com- 
pany's liability  as  regards  carriages  and  horses.  This  is  some- 
times done  by  refusing  to  carry  horses  or  carriages  unless  the 
owner  will  sign  a  special  agreement  exempting  the  company  from 
all  liability.  This  is  clearly  illegal  as  regards  the  general  liabi- 
lity, railway  companies  being  bound  like  other  carriers  by  the 
common  law  to  undertake  the  carriage  of  all  articles  offered  to 
them,  unless  there  is  some  reasonable  ground  for  refusal,  and  it 
is  only  allowable  to  the  extent  of  guarding  against  any  extra- 
ordinary risk  arising  from  the  nature  or  value  of  the  object,  unless 
a  proper  insurance  is  paid.  In  the  case  of  carriages  it  is  gene- 
rally admitted  that  there  is  no  ground  for  charging  any  insu- 


310  Of  the  User  of  the  Railway. 

cannot  therefore  by  any  special  terms  discharge 
themselves  of  all  their  duties  as  carriers  in  respect 
of  goods  which  they  receive  for  the  purpose  of  con- 
veyance, (i)  They  must  still,  it  is  conceived,  be 
understood  as  contracting  for  the  personal  care  and 
attention  of  their  agents  and  servants  about  their 
carriage,  and  for  delivering  them  at  their  proper 
place  of  destination.  If  therefore  the  goods  are  sent 
by  a  different  conveyance,  or  in  a  different  manner 
from  that  implied  by  the  undertaking  of  the  com- 
pany, the  company,  it  is  conceived,  would  be  liable 
for  the  loss,  although  otherwise  they  migjit  have 
been  exonerated  by  the  terms  of  a  special  contract. 
And  the  same  where  the  goods  are  carried  by  the 

ranee  ;  but  in  the  case  of  horses,  it  appears  fair  that  the  company 
should  not  be  responsible  for  accidents  arising  from  the  vicious- 
ness  or  restiveness  of  the  animal,  and  that  they  should  not  be 
responsible  for  more  than  a  fair  average  value,  unless  the  horse 
has  been  entered  as  of  extraordinary  value,  and  a  reasonable 
insurance  paid." 

That  th.e  company  would  not  be  held  liable  for  accidents  to 
horses  arising  from  the  animal's  own  viciousness,  &c.  see  post, 
p.  315,  u.  (v). 

The  report  goes  on  to  remark  in  a  subsequent  part  (p.  xx), 
that  ''  in  two  instances  representations  had  been  made  to  the 
department  of  the  Board  of  Trade  to  the  effect  that  railway 
companies  were  in  the  habit  of  enforcing  an  illegal  regulation, 
requiring  parties  who  sent  carriages  or  horses  by  the  railway  to 
sign  a  special  agreement,  exempting  the  conipany  from  all 
liability  for  loss,  however  occasioned.  Letters  were  written  to 
the  companies  pointing  out  the  illegality  of  such  a  course,  ex- 
cepting so  far  as  might  be  necessary  to  protect  themselves  against 
extraordinary  risk,  arising  from  the  nature  or  value  of  the  object, 
and  the  result  was,  that  the  regulation  as  regarded  carriages  was 
entirely  withdrawn,  and  as  regarded  horses  modified,  in  con- 
lormity  with  the  principles  above  stated." 

(i)  Storey  on  Bailments,  sect,  549. 


Of  a  Railway  Company  viewed  as  Carriers.  311 

company  beyond  their  place  of  destination,  and  are 
lost.  And  generally  a  special  contract  cannot  ope- 
rate to  exempt  the  company  from  responsibility  in 
cases  of  gross  negligence  and  fi-aud.  (/;;) 

420.  Although,  as  we  have  just  seen,  it  is  com- 
petent for  the  company  to  insist  on  special  terms  on 
receiving  goods  for  carriage,  yet  those  terms  must 
be  reasonable,  and  semble,  should  not  go  beyond 
what  is  necessary  to  guard  them  against  extraordi- 
nary risks  incidental  to  the  carriage  of  particular 
descriptions  of  goods,  or  else  to  secure  them  the 
payment  of  a  due  insurance  for  the  same.  It  would 
therefore,  it  is  conceived,  be  illegal  for  a  railway 
company  to  require  parties  sending  any  particular 
description  of  articles  by  the  railway,  such,  for  in- 
stance, as  carriages  or  horses,  to  sign  a  special 
agreement  exempting  the  company  from  all  liability 
for  loss  however  occasioned. 

421.  It  is  proposed  in  the  next  place  to  consider 
the  effect  of  the  carriers'  act  in  qualifying  the  posi- 
tion of  a  railway  company  as  common  carriers.  As 
a  railway  company,  when  they  take  goods  for  the 
purpose  of  conveyance,  thereby  place  themselves  on 
the  footing  of  any  other  common  carrier,  it  seems 
clear  that  they  must,  in  all  that  respects  their  cha- 
racter of  carriers,  be  within  the  scope  of  the  act. 
To  consider  the  effect  then  of  the  statute  more  at 
large,  let  us  consider,  (1st,)  the  duties  which  it  im- 
poses on  each  party  to  the  contract ;  (2ndly,)  on 
whom  it  is  obligatory  ;  (3rdly,)  to  what  articles  the 
act  applies  ;  (4thly,)  the  liability  to  which  the  com- 
pany as  carriers  remain  subject,  notwithstanding  the 
act ;  and  (lastly,)  the  general  results  of  the  act. 

(k)  Storey  on  Bailments,  sects.  549,  561. 


312  Of  the  User  of  the  Railway. 

422.  (1st.)  Of  the  duties  imposed  on  each  party 
by  the  statute.  The  company  must  take  care  to 
affix  in  all  their  offices,  warehouses  and  receiving 
houses  a  proper  notice  within  the  meaning  of  the  act, 
notifying  the  increased  rate  of  charge  which  they 
demand  for  all  goods  comprised  in  the  act.  (J)  The 
company  are  also  bound,  if  required,  to  give  a  re- 
ceipt for  parcels,  acknowledging  them  to  have  been 
insured.  (»2)  To  constitute  an  office,  receiving  house, 
&c.,  within  the  meaning  of  the  above  provision,  no 
regidar  or  formal  appointment  is  necessary  ;  but  any 
place  is  to  be  deemed  such  where  the  company's 
trains  are  in  the  habit  of  stopping  and  taking  in 
parcels.  (?i)  On  the  other  hand,  the  owner  of  the 
goods  is  bound,  at  the  time  of  delivering  them  at 
the  company's  offices,  &-c.,  provided,  that  is  to  say, 
a  proper  notice  is  affixed  there,  to  declare  the  value 
of  the  goods,  and  pay  or  enter  into  an  engagement 
to  pay  the  increased  charge  required  by  the  com- 
pany for  insuring  them,  (o)  Though  the  circum- 
stances of  the  case  are  such  as  show  an  actual  or 
presumed  knowledge  on  the  part  of  the  company's 
servants  of  the  contents  of  a  parcel,  yet  this  is  no 
equivalent  for  what  is  required  by  the  act  :  but 
there  must  be  an  express  formal  declaration  of  the 
value,  (p) 

423.  (2ndly.)  On  whom  the  statute  is  obligatory. 
Provided  the  company  comply  with  the  statute,  by 
affixing  a  proper  notice  in  their  offices,  &c.  the  sta- 

(/)  11  Geo.  4  and  1  Will.  4,  c.  68,  sect.  2. 
(m)  Ibid.  sect.  3. 

(n)  See  Syms  v.  Chaplin,  5  A.  6c  E.  642. 
(o)  11  Geo.  4  and  1  Will.  A,  c.  68,  sect.  1. 
Ip)  Boys  V.  Pink,  8  C.  &  P.  362. 


Of  a  Railway  Company  viewed  as  Carriers.  313 

tute  is  obligatory  on  all  persons  delivering  goods  of 
the  specijted  class  and  value  there,  and  this  without 
further  proof  of  the  notice  having  come  to  their 
knowledge,  {q) 

424.  (3rdly.)  0{  the  description  of  articles  falling 
within  the  statute.  The  statute,  it  would  seem,  ap- 
plies generally  to  all  articles  of  the  kind  enumerated 
in  the  first  section.  Glass,  for  instance,  being  one 
of  the  articles  which  it  enumerates,  it  must  be  taken 
to  apply  not  to  small  glasses  only,  but  to  glass  arti- 
cles of  every  description,  if  exceeding  \Ql.  in  value. 
The  preamble  indeed  speaks  of  articles  in  a  small 
compass  ;  but  these  words  are  not  found  in  the  enact- 
ing part  of  the  section,  and  the  object  of  the  statute 
requires  that  full  effect  should  be  given  to  the  gene- 
ral terms  there  employed,  and  that  their  operation 
should  not  be  cut  down  by  the  above  words  in  the 
preamble,  (r) 

From  the  terms  in  which  the  statute  speaks  of  one 
particular  kind  of  article,  viz.  silks,  composite  articles 
in  general  can  hardly,  it  is  conceived,  be  taken  to 
fall  within  its  meaning,  at  any  rate  not  unless  all  the 
component  parts  of  such  articles  are  of  the  enume- 
rated kinds,  (a) 

4^5.  (4thly.)  Oi  i\\e  degree  of  liability  of  the  com- 
pany as  carriers,  notwithstanding  the  statute.  If  a 
railway  company  comply  with  the  statute,  by  affix- 

(g)  11  Geo.  4  and  1  Will.  4,  c.  68,  sect.  2.  If  the  requisite 
notice  is  not  affixed,  the  company  are  not  within  the  protection 
of  the  act,  and  cannot  consequently  allege  the  want  of  a  decla- 
ration of  value,  &c.  on  the  part  of  the  owner  as  a  ground  of  de- 
fence to  an  action  for  the  loss,  &c.  of  the  goods. 

(r)  Oixen  v.  Burnett,  4  Tyr.  133  ;  S.  C.  2  C.  &  M.  353. 

(s)  Mayhexo  v.  Nelson,  6  C.  &  P.  58. 

P 


314  Of  the  User  of  the  Railway. 

ing  in  their  offices,  &c,  a  proper  notice  within  the 
meaning  of  such  statute,  then  if  a  party  sends  goods 
of  the  specified  kinds  and  value  by  the  company's 
trains,  without  making  a  declaration  of  their  value, 
and  without  paying  or  engaging  to  pay  the  increased 
rate  of  charge  specified  in  any  such  notice,  the  com- 
pany are  discharged  from  all  responsibility  as  car- 
riers for  any  loss  or  damage  happening  to  the  goods, 
and  this  even  though  the  loss,  &c.  be  caused  by  the 
gross  negligence  of  the  company  and  their  ser- 
vants, {t)  For  the  felonious  acts  indeed  of  their 
servants  the  company  are  still  liable,  the  exemption 
being  in  this  case  taken  away  by  the  express  words 
of  the  statute  ;  and  the  same  rule  would  seem  to 
apply  to  cases  of  wilful  damage  or  misfeasance, 
wholly  independent  of  the  company's  character  as 
carriers,  (m) 

426.  (Lastly,)  as  to  the  .main  results  of  the  act ; 
these  may  be  briefly  summed  up  under  two  heads ; 
1st,  the  company  are  relieved  from  the  burden  of 
proving  that  the  notice  has  actually  come  to  the 
party's  knowledge  who  is  to  be  affected  by  it;  2ndly, 
they  are  secured  the  adequate  information  as  to  the 
nature  of  the  article  that  may  enable  them  to  provide 
for  its  due  protection  on  the  road,  and  also  an  in- 
creased compensation  for  the  greater  risk  and  liabi- 
lity, or  else  they  are  discharged  from  all  liability  as 
carriers  in  respect  of  any  loss  or  damage  happening 
to  the  goods,  which,  under  the  circumstances,  the 
owner  must  be  considered  to  take  on  himself. 

427.  The  next  head  of  inquiry  is,  as  to  what  will 

(0  Hiuton  V.  Dibbin,  2  A.  &  E.  N.  S.  646. 
(m)  See  argument  o(  Sir  W.  Follett,  ibid. 


Of  a  Railway  Company  viewed  as  Carriers.  315 

excuse  or  Justify  the  non-delivery  of  the  goods  by 
the  company.  In  the  first  place,  it  is  a  sufficient 
justification  for  the  company  to  show  that,  without 
any  negligence  on  their  part,  the  goods  have  been 
lost  by  the  act  of  God  or  of  the  king's  enemies  ;  or, 
in  cases  of  especial  limitation  of  responsibility,  that 
the  loss  was  one  against  which  they  were  protected 
by  the  terms  of  the  limitation,  {x) 

428.  The  company  may  also  show  in  their  defence 
that  the  goods  have  perished  owing  to  their  not 
being  properly  packed,  or  from  some  internal  de- 
fect, (y)  without  any  fault  on  their  side  ;  and,  if  from 

(x)  Storey  on  Bailments,  sect.  574. 

(y)  So  in  the  case  of  an  animal  sent  by  the  railway,  it  has  been 
ruled  that  the  company  are  not  liable  for  an  accident  arising 
from  the  animal's  own  viciousness  or  want  of  temper ;  Walker  v. 
The  London  and  South  Western  Railway  Company,  Kingston 
Spring  Assizes,  1843. 

The  above  ground  of  defence,  that  the  injury  was  owing  to 
some  internal  defect  in  the  articles  themselves,  or  to  the  improper 
mode  of  packing,  &c.  is  one  that  has  in  various  instances  been 
set  up  by  railway  companies.  In  Norman  v.  London  and  Brigh- 
ton Railway  Company,  which  was  an  action  for  an  injury  to 
some  chairs  sent  by  the  defendants'  railway,  the  company  at- 
tempted to  show  that  the  chairs  were  of  inferior  materials  and 
badly  packed,  though  ultimately  the  plaintiff'  had  a  verdict. 
Home  Circuit,  May,  1843. 

Again,  in  Lucas  v.  Birmingham  and  Gloucester  Railway  Com- 
pany, which  was  an  action  against  the  company  as  carriers  for  a 
loss  by  leakage  from  a  flask  of  essential  oil  of  lemons,  the  de- 
fence was,  that  the  loss  arose  from  the  improper  packing  of  the 
case  containing  the  flask,  and  not  from  any  negligence  on  the 
part  of  the  company.  The  plaintiff,  however,  obtained  a  verdict. 
Oxford  Spring  Assizes,  1842. 

So  in  Rntley  v.  South- Eastern  Railway  Company,  Spring  As- 
sizes, 1845.  Maidstone.  This  was  an  action  for  the  loss  of  some 
linen  goods  sent  by  the  defendants*  railway,  owing,  as  it  ap- 
p2 


316  OJ  the  User  of  the  Railway. 

the  nature  of  the  goods  carried,  they  are  liable  to 
peculiar  risks,  and  the  company  take  all  reasonable 
care  and  use  all  proper  precautions  to  prevent  inju- 
ries, and  notwithstanding  they  are  destroyed  by  such 
risks,  they  are  not  answerable.  (2) 

429.  Again,  the  company  will  be  excused  by  any 
act  of  the  bailor  which  terminates  their  respon- 
sibility as  carriers,  as  if  with  the  consent  of  the 
bailor  they  deliver  them  over  to  another  carrier,  or 
deposit  them  at  some  intermediate  place  to  await 
the  future  orders  of  the  bailor,  or  the  latter  take 
them  into  the  exclusive  custody  of  himself  or  his 
servants,  {a) 

430.  Another  ground  of  excuse  is  that  resulting 
from  the  right  of  the  consignor  to  stop  the  goods  in 
the  possession  of  the  company  while  they  are  still 
in  transit.  This  right  exists  only  in  cases  where 
certain  circumstances  concur,  viz.  where  the  goods 
are   sold   on  a  credit  ;   where   the   consignee  is   in- 

peared,  to  sparks  frora  the  engine  getting  inside  the  truck,  and 
setting  the  bale  containing  the  linen  on  fire.  The  defence  was, 
that  the  goods  were  not  properly  packed,  the  tarpauline,  which 
covered  the  truck,  having  been  full  of  holes.  The  plaintiff, 
however,  had  a  verdict. 

And  where  a  carrier  received  several  packages,  one  of  watches, 
another  of  flutes,  &:c.,  and  put  thera  all  up  in  one  bag,  and  so 
sent  them  by  railway,  and  the  flutes  were  injured,  it  was  left  to 
the  jury  to  sav  whether  the  accident  was  attributable  to  the 
carelessness  of  the  company,  or  whether  the  plaintiff,  by  his  owu 
improper  proceeding,  contributed  to  the  disaster,  the  mode  of 
packing  adopted  by  him  having  thrown  upon  the  company  a 
more  onerous  task  than  if  they  had  received  the  articles  sepa- 
rately ;  Smith  v.  London  and  Birmingham  Railway  Company, 
IMidland  Circuit,  1845. 

(z)  Storey  on  Bailments,  sect.  576. 

{a)  Ibid.  sect.  578. 


Of  a  Railway  Company  viewed  as  Carriers.      317 

solvent ;  where  the  goods  are  still  in  transit ;  and 
where  the  buyer  has  not  yet  parted  with  his  owner- 
ship to  any  bona  fide  purchaser  under  him.  {h) 

431.  Lastly,  of  the  general  rights  of  a  railway 
company  as  common  carriers.  A  company,  under  the 
usual  provisions  of  a  railway  act,  have  a  right  to  fix 
their  own  charges  for  the  carriage  of  goods,  &c.,  sub- 
ject only  to  the  conditions  imposed  by  their  act.  It 
usually  forms  part  of  these  conditions  that  the  charges 
shall  be  reasonable  and  equal  to  all  persons,  (c)  and 
that  no  favour  shall  be  shown  thereby  to  one  person 
or  description  of  persons  at  the  expense  of  another. 
The  criterion  for  determining  how  far  a  charge  is 
reasonable  or  not,  is  to  consider  the  trouble,  expense 
and  responsibility  attending  the  receipt,  carriage 
and  delivery  of  the  goods  in  question.  Where  these 
are  equal,  the  charge  should  be  the  same  ;  where 
they  vary,  the  charge  may  fairly  be  varied  in  the 
same  proportion.  For  instance,  for  small  parcels 
more  may  fairly  be  charged  by  the  company  than 
a  proportionate  part,  according  to  weight,  of  the 
price  of  larger  parcels  of  the  same  commodity,  by 
reason  of  the  greater  trouble  in  receiving,  dis- 
patching and  delivering  them,  and  their  exposure 
to  a  much  greater  risk  of  abstraction  or  loss.  But 
if  a  number  of  small  parcels  are  united  in  one  large 
package,  and  in  that  state  delivered  to  the  company, 
consigned  to  one  person,  the  trouble  and  respon- 
sibility are  reduced  to  much  the  same  degree,  as  if 
all  the  articles  contained  in  the  package  were  the 
property  of  the  same  owner  and  intended  to  be 
delivered  to  him,  the  only  difference  being,  that  in 

(6)  Storey  on  Bailments,  sects.  580,  581. 
(c)  Or  equal  under  the  like  circumstances.     See  Railway 
Clauses  Consolidation  Act  (8  Vict.  c.  20),  sect.  90,  post,  App. 


318  Of  the  User  of  the  Railway. 

the  former  case,  supposing  a  misdelivery  or  other 
conversion  of  the  goods  by  the  agents  or  servants 
of  the  company,  the  company  would  be  liable  to 
several  actions  of  trover  instead  of  one.  The  com- 
pany therefore  can  have  no  right  to  charge  for  the 
package  of  distinct  parcels  belonging  to  different 
owners  more  than  if  they  belonged  to  the  same, 
with  the  exception,  perhaps,  of  some  slight  addi- 
tional remuneration  in  the  former  case  on  account 
of  their  liability  not  to  pay  greater  damages,  (for 
they  would  be  the  same  in  both  cases,)  but  to  pay  the 
same  damages  by  different  suits.  A  charge  there- 
fore going  beyond  this  would  be  clearly  unreasonable 
as  not  being  justified  by  the  increase  of  responsi- 
bility arising  from  the  circumstance  of  the  proper- 
ties being  separate,  (rf)  as,  for  instance,  where  it  was 
sought  to  enforce  a  charge  of  4^.  Is.  8rf.  for  one 
package,  for  which,  according  to  the  company's  list 
of  charges,  1/.  6s.  Qd.  would  have  been  the  proper 
charge,  had  it  consisted  of  parcels  being  one  property, 
and  Si.  Is.  Gd.  instead  of  9s.  for  another.  So  like- 
wise, to  charge  the  same  sum  to  a  consignee  who  is 
willing  to  receive  the  goods  at  the  railway  terminus, 
and  to  one  who  requires  them  to  be  delivered  at 
their  place  of  destination,  is  both  unreasonable  and 
unequal,  {d) 

432.  What  is  sometimes  made  a  second  requisite 
of  the  charges  of  a  railway  company  is,  that  they  be 
equal  to  all  persons.  Where  this  is  the  case,  a  com- 
pany cannot  so  frame  their  charges  as  to  give  a  mo- 
nopoly to  a  particular  individual,  or  give  an  advan- 
tage to  one  inflividual  and  withhold  it  from  another 

(d)  Pickfoi-d  V.  The  Grand  Junction  Railway  Company,  10 
M.  &  W.  399. 


Of  a  Railway  Company  viewed  as  Carriers.      319 

under  similar  circumstances ;  (?)  neither  can  a  rail- 
way company  be  allowed  to  make  a  difference  in 
their  charges  to  the  public  at  large  and  to  a  parti- 
cular class  or  description  of  individuals  to  the  pre- 
judice of  the  latter.  Accordingly,  if  a  railway  com- 
pany arrange  with  a  particular  carrier  that  he  shall 
deliver  for  them  all  goods  coming  by  their  railway, 
and  for  so  doing  shall  be  allowed  a  certain  per  cent- 
age  on  the  charges  for  carriage  made  to  the  public 
at  large,  they  cannot  refuse  to  make  the  same  allow- 
ance to  another  carrier  who  is  willing  to  perform  all 
that  the  favoured  carrier  does  in  respect  of  it.  (e) 
Upon  a  like  principle,  where  a  railway  company 
allow  carriers  in  general  a  deduction  of  so  much  per 
cent,  on  the  charge  for  carriage  made  to  the  public 
at  large  for  the  performance  of  certain  duties,  they 
are  bound  to  make  the  same  allowance  to  a  par- 
ticular carrier,  willing  to  perform,  and,  in  fact, 
performing  all  the  duties  performed  by  the  other 
carriers,  (e)  notwithstanding  the  company  are  them- 
selves ready  and  willing  to  perform  all  things  that 
form  the  consideration  for  the  allowance. 

433.  So  where  a  company  adopted  a  scale  of 
charges,  according  to  which,  if  one  of  the  public 
brought  several  packages  and  paid  the  carriage,  he 
was  charged  upon  the  weight  of  the  aggregate  only, 
and  this,  although  the  goods  belonged  to  different 
consignees ;  and  the  same,  where  several  of  the 
public  brought  several  packages,  addressed  to  a 
single  consignee,  who  was  to  pay  the  charges  ;  but 
in  case  of  a  carrier  bringing  several  packages  for 

(e)  Parker  v.  The  Great  Western  Raihcay  Company,  22  Law 
Journ.  C.  P.  105  ;  S.  C.  7  M.  &  Gr.  253  ;  7  Scott's  N.  R.  835. 
See  also  Pickford  v.  The  Grand  Junction  Railway  Company,  10 
M.  &  W.  399. 


320  Of  the  User  of  the  Railwatj. 

conveyance,  consigned  by  or  to  different  persons, 
he  was  charged  upon  the  separate  weight  of  each 
package,  unless  it  were  known  that  more  that  one 
package  belonged  to  the  same  consignor,  and  was 
going  to  the  same  consignee,  in  which  case  all  be- 
longing to  the  same  sender,  and  going  to  the  same 
consignee,  were  charged  upon  their  aggregate  weight, 
it  was  held  that  the  company  were  not  justified  in 
making  this  distinction  between  carriers  and  other 
members  of  the  public.  (/) 

434,  What  the  company  cannot  do  directly,  they 
cannot  do  indirectly.  They  have  no  right  therefore 
;o  impose  certain  conditions  (which  their  act  does 
not  authorize  them  to  impose)  on  persons  bringing 
goods  for  the  purpose  of  conveyance,  and  in  case  of 
those  conditions  not  being  complied  with,  to  make 
a  higher  rate  of  charge  by  way  of  penalty  on  the 
recusants.  (/)  Where,  therefore,  a  railway  com- 
pany made  an  allowance  to  carriers  in  particular 
cases,  where  they  disclosed  the  name  of  the  con- 
signors and  consignees  of  the  goods,  it  was  held 
that  they  were  not  justified  in  withholding  from  a 
carrier,  who  refused  to  make  such  disclosure,  any 
allowance  to  which  he  would  otherwise  have  been 
entitled.  (/) 

435.  The  usual  provision  for  the  equality  of 
charges,  it  has  been  held,  is  intended  to  prevent 
companies,  when  they  get  the  monopoly  of  the  car- 
riage of  the  public,  from  exercising  that  monopoly 
to  the  prejudice  of  individuals ;  it  cannot  therefore 
be  construed  to  bind  a  railway  company  in  every 
case  to  observe  an  uniform  rate  of  mileage,  provided, 
at  least,  that  there  is  nothing  in  the  variation  of  the 

(/)  Parker  v.  The  Great  Western  Railway  Company,  ubi 
supra. 


Of  a  Railway  Company  viewed  as  Carriers.      3  "31 

rate  calculated  to  give  an  advantage  to  one  individual 
at  the  expense  of  another,  or  generally  to  prejudice 
the  interests  of  the  public,  {g)  or  otherwise  militating 
against  the  provisions  of  the  company's  act ;  but  they 
may  charge  a  short  passenger  at  a  higher  rate  than 
a  long  one  for  passing  over  the  same  distance,  {g) 

436.  A  railway  company,  like  any  other  carriers, 
are  in  all  cases  entitled  to  be  paid  the  price  of  car- 
riage upon  the  receipt  of  the  goods,  {h)  and  if  not 
paid,  they  may  refuse  to  take  charge  of  them.  If, 
however,  they  take  charge  of  them  without  the  hire 
being  paid,  they  may  afterwards  recover  it.  (i) 

437.  By  virtue  of  the  delivery  of  goods  to  a  rail- 
way company  for  the  purposes  of  carriage  they  ac- 
quire a  special  property  in  them,  and  may  main- 
tain an  action  against  any  one  who  displaces  their 
possession,  or  does  any  injury  to  the  goods.  (^) 

438.  Lastly,  the  company  are  entitled  to  a  lien 
on  the  goods  for  their  hire,  and  are  not  compellable 
to  deliver  them  until  they  receive  it,  unless  they 
have  entered  into  some  special  contract  by  which  it 
is  waived.  Their  lien  may  also  be  defeated  by  giv- 
ing up  the  possession  of  the  goods.  (/) 

(g)  An.  Gen.  v.  Birmingham  and  Derby  Railway  Company, 
2  Railw.  Cas.  124.  Qusre  however  as  to  the  validity  of  the  posi- 
tion here  laid  down  on  the  authority  of  the  above  decision  ;  the 
Court  of  Queen's  Bench  having  subsequently  granted  a  mandamus 
against  the  Birmingham  and  Derby  Railway  Company  in  order 
to  reconsider  the  point  in  question  ;  though,  owing  to  the  company 
that  obtained  the  mandamus  and  the  Birmingham  and  Derby  af- 
terwards being  amalgamated,  the  writ  dropped  to  the  ground. 

(h)  Pickford  v.  The  Grand  Junction  Railway  Company,  2 
Railw.  Cas.  592  ;  S.  C,  8  M.  &  W.  372. 

(i)  Storey  on  Bailments,  sect.  586. 

{k)  Ibid.  sect.  585. 

(I)  Ibid.  sect.  588. 

p5 


322  Of  the  User  of  the  Railway. 

Sub-Sect.  2. — Of  the  Company  viewed  as  Passenger 
Carriers.' 

4:39.  Having  considered  the  rights,  duties  and 
liabilities  of  a  railway  company  as  carriers  of  goods, 
it  is  proposed,  in  the  next  place,  to  view  them  as 
carriers  of  passengers.  In  this  capacity  they  are 
not  subject  to  so  extensive  a  responsibility  as  in  the 
former.  They  are  not,  accordingly,  liable  for  mere 
accidents  happening  to  the  persons  of  passengers, 
but  only  for  want  of  due  care.  It  may  be  useful, 
however,  to  consider  somewhat  more  at  large  the 
position  of  the  company  as  carriers  of  passengers, 
and  herein  of  their  duties,  liabilities  and  rights  as 
such. 

440.  1st.  Of  their  duties  in  the  commencement  of 
the  journey.  The  first  and  most  general  obligation 
on  their  part  is  to  carry  passengers  whenever  they 
offer  themselves  and  are  ready  to  pay  for  their 
transportation,  (m) 

441.  In  the  next  place,  the  company  are  bound 
to  provide  engines  and  carriages  reasonably  strong 
and  sufficient  for  the  journey,  with  all  suitable  equip- 
ments, and  to  make  a  proper  examination  thereof 
before  each  journey.  If  an  accident  happen  from 
the  defective  construction  (n)  of  any  engine,  carriage, 

(m)  Storey  on  Bailments,  sect.  591. 

(n)  Whitnall  v.  Manchester  and  Leeds  Railway  Ccmpany. 
That  was  an  action  for  an  injury  sustained  by  the  piaintiif,  owing 
to  the  door  of  the  carriage  in  which  he  was  riding,  and  against 
which  he  was  pressing  at  the  time,  bursting  open,  and  throwing 
him  out.  The  carriage,  it  appeared,  had  no  seats.  The  plain- 
tiff charged  the  company  with  negligence,  on  the  ground  of  the 
door  not  having  a  proper  fastening.    The  company  endeavoured 


Of  a  Railway  Company  viewed  as  Carriers.   323 

&c.,  the  company,  it  is  conceived,  are  liable,  even 
though  the  defect  be  out  of  sight  and  not  discover- 
able upon  an  ordinary  examination,  (o) 

442.  In  the  next  place,  the  company  are  bound 
to  provide  engine  drivers,  guards,  &:c.  of  reasonable 
skill  and  good  habits  for  the  discharge  of  their  se- 
veral duties,  and  who  are  also  competently  acquainted 
with  the  line  of  railway,  its  differences  of  inclination, 
embankments,  cuttings,  and  the  like,  so  as  to  regu- 
late the  pace  of  the  train  accordingly,  {p) 

443.  In  the  next  place,  they  are  bound  to  receive 
and  take  care  of  the  usual  luggage  which  it  is  cus- 
tomary to  allow  every  passenger  to  carry  for  the 
journey. {q) 

444.  2ndly  of  their  duties  on  the  progress  of  the 
journey.  They  are  bound  to  stop  at  the  usual 
places,  and  to  allow  the  usual  intervals  for  the 
refreshment  of  the  passengers,  and  they  cannot,  at 
their  mere  caprice,  vary  or  annul  these  accommo- 
dations, (r) 

445.  They  are  bound  to  make  use,  by  their  ser- 
vants, of  all  the  ordinary  precautions  for  the  safety 
of  passengers  on  the  journey.  This  involves  a  con- 
sideration of  the  duties  of  the  engine  driver,  &c.  in 
the  conduct  of  the  train.     If  the  driver  is  guilty  of 

to  show  that  the  accident  was  attributable  to  the  plaintiff's  own 
conduct.  But  the  jury  found  a  verdict  for  the  plaintiff.  North- 
ern Circuit,  1842. 

(o)  See  Storey  on  Bailments,  sect.  592;  Sharp  v.  Grey,  2  M. 
&  So.  620 ;  S.  C.  9  Bing.  457. 

(p)  See  Storey  on  Bailments,  s.  593. 

(q)  Ibid.  s.  595. 

(r)  Ibid.  s.  ,597. 


324  Of  the  User  of  the  Railway. 

any  rashness,  negligence,  or  misconduct,  or  is  want- 
ing in  due  skill,  the  company  will  be  responsible  for 
the  injury  thereby  occasioned.  If,  for  instance,  he 
increases  the  speed  of  the  train  to  such  a  pitch  as  is 
in  all  reason  inconsistent  with  its  safety,  if  at  a  part 
of  the  road  which  is  more  than  ordinarily  dangerous 
from  the  general  nature  of  the  ground,  the  con- 
struction of  the  railway,  &c.,  he  does  not  employ 
an  increased  degree  of  caution  and  watchfulness  pro- 
portionate to  the  necessary  increase  of  risk,  and  an 
accident  happens  in  consequence,  the  company  are 
answerable.  So,  if  by  want  of  due  skill  or  care,  a 
train  under  his  management  comes  in  collision  with 
another  train.  («) 

446.  Lastly,  of  the  company's  duties  on  the  termi- 
nation of  the  journey.  In  all  cases  the  company  are 
bound  to  carry  the  passengers  to  the  end  of  their 
journey,  and  to  put  them  down  at  the  usual  place  of 
stopping.  (<)  If  (as  is  ordinarily  the  case  where  a 
train  goes  a  long  distance)  the  company  accept  pas- 
sengers to  be  set  down  at  intermediate  places  on  the 
route  short  of  the  entire  distance,  they  are,  it  should 
seem,  bound,  upon  the  train's  arrival  at  each  of  such 
places,  to  give  timely  notice  to  the  psssengers.  It', 
in  spite  of  such  notice,  a  passenger  suffers  himself 
to  be  carried  on,  he  must  bear  the  consequences  of 
what  cannot  but  be  considered  as  his  own  negli- 
gence, and  perhaps  may  even  be  subject  to  pay  the 
additional  fare  for  the  increased  distance  which  he 
is  thus  obliged  to  travel. 

447.  Next  as  to  the  liabilities  of  the  company  as 

(s)  Storey  on  Bailments,  s.  598. 
{t)  Ibid.  s.  600. 


Of  a  Railway  Company  viewed  as  Carriers.    325 

carriers  of  passengers. (m)  These  flow  naturally 
from  their  duties ;  not  being  insurers,  their  under- 
taking is  not  an  undertaking  absolutely  to  convey 
safely  ;  but  they  are  bound  only  to  due  care  and 
diligence  in  the  performance  of  their  duties. («<)  But 
what  is  to  be  the  measure  of  this  due  care  and  dili- 
gence ?  Considering  the  frightful  and  very  alarming 
risks  to  which  the  travelling  by  railway  is  incident, 
a  less  stringent  rule,  cannot,  it  is  conceived,  be 
adopted  than  that  which  applies  to  ordinary  passen- 
ger carriers,  (a;)  The  company  therefore  must  be 
considered  as  binding  themselves  to  carry  safely 
those  whom  they  accept  for  passengers  as  far  as 
human  care  and  foresight  will  go ;  that  is,  for  the 
utmost  care  and  diligence  of  very  cautious  persons, 
and  they  are  consequently  to  be  deemed  liable  even 
for  slight  negligence,  (a;) 

448.  But  the  company  as  passenger  carriers,  not 
being  insurers,  are  not  responsible  for  accidents, 
where  all  reasonable  skill  and  diligence  have  been 
employed,  (m)  However  serious  therefore  the  in- 
jury that  a  passenger  may  receive  in  journeying  by 
railway,  if  there  be  no  negligence,  the  company  are 
exonerated,  (a;) 

449.  In  case  of  an  accident  happening  to  a  passen- 
ger by  railway,  it  would  seem  to  rest  with  the  com- 
pany, as  having  the  control  of  the  railway,  and  of 
all  the  machinery  employed  upon  it,  to  explain  the 
cause  of  the  occurrence,  and  to  show,  if  they  can, 

(u)  See  Carptie  v.  The  London  and  Brighton  Railway 
Company,  22  Law  Journal,  Q.B.  133 ;  S.  C.  5  A.  k  E.  N.  S. 
747. 

(x)  See  Storey  on  Bailments,  601,  602. 


326  Of  the  User  of  the  Railway. 

that  it  was  wholly  accidental,  and  not  produced  by 
any  misconduct  or  negligence  on  their  part,  {y) 

450.  With  respect  to  the  luggage  of  passengers. 
Where  a  passenger  books  and  pays  for  his  luggage, 
the  company  are  liable  for  it  as  common  carriers. 
But  even  where  they  receive  no  specific  compensa- 
tion therefore,  and  receive  simply  their  fare  for  the 
passage  of  the  passenger,  yet  are  they  responsible 
(if  not  as  common  carriers)  at  least  for  due  and 
reasonable  care  of  such  baggage.  Indeed  it  would 
seem  to  be  by  no  means  settled  whether  as  to  pas- 
sengers' luggage,  even  without  distinct  compensation, 
the  company  are  not  liable  in  the  former  character, 
viz.  as  common  carriers  ;  and  perhaps  the  tenor  of 
the  authorities  may  rather  be  in  favour  of  this,  as 
the  true  modern  rule  upon  the  subject.  (2) 

451.  This  supposes  that  the  company  do  not  pro- 
tect themselves  as  to  the  luggage  of  passengers  by 
some  special  contract  on  the  subject,  (a)     Usually, 

(2/)  See  Carpue  v.  The  London  and  Brighton  Railway  Cum- 
pany,  22  Law  Journal,  Q.B.  133  ;  S.  C.  5  A.  &  E.  N.  S.  747. 

(s)  See  Storey  on  Bailments,  ss.498,  499. 

(a)  There  are  some  remarks  on  the  subject  of  passengers' 
luggage  in  the  Report  of  the  Officers  of  the  Railway  Depart- 
ment of  the  Board  of  Trade,  (a.d.  1842,)  which  it  may  be  proper 
to  notice  in  this  place,  and  which  are  as  follows : — 

"  Several  railway  companies  have  regulations  limiting  their 
liabilities  in  regard  to  passengers'  luggage,  the  purport  of  such 
regulations  generally  being,  '  that  the  charge  made  for  passen- 
gers does  not  extend  to  luggage,  and  that  the  company  will  not 
be  answerable  for  luggage  unless  booked  and  paid  for.'  Such  a 
regulation  may  be  reasonable  where  the  practice  of  booking  lug- 
gage is  really  carried  out  and  proper  facilities  are  afforded  to  the 
public  for  complying  with  it.  Railway  companies,  like  coach 
proprietors  or  other  carriers,  may  refuse  to  take  charge  of  Jug- 
gage  unless  booked   or  given  over  to   their  servants   in  con- 


Of  a  Railway  Company  viewed  as  Carriers.    '3  2  7 

however,  the  railway  company  take  care  to  stipu- 
late with  all  passengers  going  by  their  line  that  they 
will  not  be  responsible  for  the  luggage  of  passen- 
gers, except  it  is  regularly  booked  and  paid  for. 
The  effect  of  this,  it  is  conceived,  where  the  requi- 
sition is  not  complied  with,  is  at  any  rate  to  exempt 
them  from  all  liability  as  common  carriers,  though 
it  may  still  leave  them  chargeable  for  any  want  of 
ordinary  care  and  precaution  in  their  mode  of  deal- 

formity  with  the  general  rules  which  they  have  found  it  necessary 
to  lay  down  for  conducting  their  business.  But  the  case  is  dif- 
ferent, when,  as  frequently  happens,  the  regulation  respecting 
booking  is  a  dead  letter,  and  the  general  practice  is  to  take 
charge  of  passengers'  luggage  without  requiring  it  to  be  booked. 
In  this  case  the  regulation  in  question  is  nothing  but  a  notice, 
the  legal  effect  of  which  is  very  doubtful,  and  which,  if  the  di- 
rectors think  it  advisable  to  issue,  they  ought  to  issue  us  a  notice 
and  not  in  the  form  of  a  regulation  requiring  the  approval  of  the 
Board  of  Trade."  Report  of  Officers  of  Railway  Department, 
1842,  p.  xix. 

The  Carriers'  Act  distinctly  provides  that  no  general  notice 
shall  limit  the  liability  of  common  carriers  with  regard  to  ob- 
jects other  than  those  enumerated  in  the  act,  and  the  proper 
rule  appears  to  be,  that  although  railway  companies  may  refuse 
to  take  charge  of  passengers'  luggage,  unless  such  reasonable  re- 
gulations as  they  have  found  it  necessary  to  lay  down  are  complied 
with,  yet  that  if  they  do  actually  lake  charge  of  such  luggage, 
they  incur  the  ordinary  common  law  liability  of  carriers,  subject 
only  to  the  limitations  of  the  Carriers'  Act.    lb. 

Unquestionably  issued  as  a  mere  nntice,  such  a  regulation  could 
not  have  any  further  effect  in  limiting  the  liability  of  the 
company  than  what  is  ascribed  to  it  in  the  above  remark.  But 
semhle,  where  the  company  take  care  to  embody  it  in  the  tickets 
delivered  to  every  passenger  on  taking  his  place,  as  part  of  the 
terms  on  which  they  are  willing  to  accept  him,  this  would  con- 
stitute a  special  contract  between  the  parties  of  the  nature 
stated  in  the  text.  See  Palmer  v.  Grand  Jiinction  Railvcay 
Company,  4  M.  &  W.  752. 


328  Of  the  User  of  the  Railway. 

incr  with   such  luworage  ;  in  other  words,  for  gross 
negbgence,  and  a  fortiori  for  a  wilful  misfeasance. (6) 

452.  Again,  the  articles  composing  the  luggage 
may  be  of  the  kinds  enumerated  in  the  Carriers'  Act, 
and  so  the  company  may  be  entitled  in  regard  of 
them  to  the  protection  of  such  act,  though  this  of 
course  they  can  claim  only  when  a  notice  has  been 
duly  affixed  in  their  offices,  &c.,  pursuant  to  the  re- 
quisitions of  the  act, 

453.  Lastly,  the  company  may  be  entitled  to  a 
protection  more  or  less  extensive  in  regard  of  the 
luggage  of  passengers  under  the  provisions  of  their 
own  act  of  incorporation  ;  as,  for  instance,  where  a 
railway  act  provided  that  the  company  should  not 
be  responsible  for  any  thing  taken  with  him  by  a 
passenger,  save  articles  of  clothing  of  a  given  weight 
and  dimensions.  Under  a  provision  of  the  above 
kind,  the  company  are  exempt  from  all  liability  in 
respect  of  goods  accompanying  a  passenger,  not 
being  articles  of  clothing  of  the  requisite  weight  and 
dimensions,  (c)  that  is  to  say,  from  all  liability  as 
carriers  ;  for  the  clause  cannot,  it  is  conceived,  be 
construed  into  a  licence  to  the  company  to  divest 
themselves  of  their  character  as  carriers  as  to  such 
goods,  and  deal  with  them  at  their  own  free  will  and 
pleasure. 

454.  The  rights  {d)  of  the  company  as  passenger 

(b)  The  company  cannot,  it  is  conceived,  by  such  a  contract, 
be  allowed  to  contravene  any  of  the  provisions  of  their  act  in 
favour  of  the  public. 

(c)  Elwell  v.  The  Grand  Junction  Railway  Company,  5  M.& 
W.669. 

(d)  As  to  the  right  of  detaining  passengers  practising  frauds 


\ 


Of  a  Railway  Company  viewed  as  Carriers.  329 

carriers.  They  have  a  right  to  demand  and  re- 
ceive their  fare  at  the  time  when  the  passenger  en- 
gages his  seat;  if  he  refuses  to  pay  it,  they  are  not 
bound  to  carry  him.(e)  The  company  as  passenger 
carriers  also  have  a  lien  on  the  baggage  of  the  pas- 
senger for  his  fare,  but  not  on  the  person  of  the  pas- 
senger, or  the  clothes  he  has  on.  (y) 

on  the  company  under  Railways  Clauses  Consolidation  Act  (8 
Vict.  c.  20),  see  act,  ss.  103, 104,  post,  App. 

(e)  In  order  to  secure  the  due  payment  of  their  fares,  and  to 
guard  against  frauds  as  well  on  the  part  of  the  public  as  of  their 
own  servants,  railway  companies  have  invariably  found  it  indis- 
pensable to  adopt  the  ticket  system,  which  requires  fares  in  all 
instances  to  be  prepaid,  and  tickets  given  to  the  passengers, 
which  are  considered  as  the  sole  vouchers  for  the  payment  oi 
the  fare,  and  are  collected  from  the  passengers  before  they  leave 
the  trains  or  stations.    Rep.  Railw.  Department,  1842,  p.  xvii, 

(/)  See  Storey  on  Bailments,  ss.  603.  604. 


(     S30     ) 


CAP.  VI. 

Of  certain  general  Statutory  Provisions  for  the  Regu- 
lation, ^'c.  of  Railway  Companies,  whereby  their 
Porvers,  Duties,  Obligations,  ^-c.  are  more  or  less 
extensively  modified,  (a) 

I  — Of  Powers  of  Supervision  reserved  to  Board  of  Trade, 
II. — Of  Provisions  for  the  Extension  and  Enlargement  of  the 
Powers  of  Railway  Companies. 
III. — Of  Regulations  tonching  matters  of  Police. 
IV. — Of  Provisions  qualifying  or  extending  the  Duties,  &c.  of 

Railway  Companies. 
V. — Of  certain  conditions  annexed  to  future  Grants  of  Powers 
for  making  of  Railways. 


I.   Of  Powers    of  Supervision   reserved  to    Board  of 
Trade  over  Railway  Comjoaies.  (6) 

455.  Inspection  of  Railways.  The  board  of  Trade, 
in  the  first  place,  may  appoint  proper  persons  for  the 
inspection   of  railways,  and  also  for  the  purpose  of 

(o)  There  are  certain  general  provisions  of  the  acts  in  ques- 
tion relating  more  or  less  to  all  the  above  heads,  that  it  may  be 
proper  to  notice  in  this  place.  As  to  the  interpretation  of  acts, 
see  3  &  4  Vict.  c.  97,  s.  21  ;  5  &  6  Vict.  c.  55,  s.  21  ;  7  &  8 
Vict.  c.  85,  s.  25.  See  also  as  to  recovery  and  application  of 
penalties,  5  &  6  Vict.  c.  55,  s.  22 ;  7  &  8  Viot.  c.  85,  s.  24.  As 
to  taking  away  of  certiorari,  see  3  &  4  Vict.  c.  97,  s.  17.  Also 
as  to  the  service  of  all  communications  to  or  from  Board  of 
Trade,  and  the  authentication  of  the  Uitter,  &c.,  see  3  &  4  Vict, 
c.  97,  s.  20  ;  5  &  6  Vict.  c.  55,  s.  19  ;  7  &  8  Vict,  c  85,  s.  23. 

(6)  As  to  power  given  to  Board  of  Trade  to  certify  for  con- 
struction of  screens  to  roads  under  Railway  Clauses  Consolidation 


Powers  of  Supervision  of  Board  of  Trade.    331 

enabling  the  Board  to  carry  out  the  provisions  of 
any  general  act  relating  to  railways,  (c)  Persons 
appointed  in  the  capacity  of  inspectors  are  autho- 
rized at  all  reasonable  times  and  upon  producing 
their  authority,  if  required,  to  enter  upon  and  exa- 
mine the  railway  and  the  works,  &c.,  belonging 
thereto  ;  and  wilfully  to  obstruct  any  such  person 
in  the  execution  of  his  duty  subjects  the  guilty  party 
to  a  penalty  not  exceeding  10/.,  which  is  recoverable 
before  a  single  justice,  (c/) 

456.  Notice  of  Opening.  Railways  are  not  to  be 
opened  without  a  twofold  notice  to  the  Board  of 
Trade,  1st,  of  the  intended  opening;  and  2ndly,  of 
the  time  when  the  railway  will,  in  the  opinion  of 
the  company,  be  sufficiently  completed  for  the  safe 
conveyance  of  passengers,  &c.  (e)  II  a  railway  is 
opened  without  notice,  the  company  are  liable  to  a 
penalty  of  20/.  for  every  day  that  the  railway  con- 
tinues open,(/)  until  the  requisite  notices  have  been 
given  and  expired.  Where,  on  inspection,  the  rail- 
way is  reported  to  be  dangerous,  the  Board  of  Trade 
are  empowered  to  suspend  the  opening  from  time  to 
time  ;  if,  in  spite  of  the  order  of  the  Board  to  the 
contrary,  the  company  open  the  railway,  they  are 
liable  to  a  penalty  of  20/.   for  every  day  that  the 

Act  (8  Vict.  c.  20),  see  act,  s.  63,  post,  App.  ;  also  as  to 
power  given  to  Board  of  Trade  under  same  act  to  modify  con- 
struction of  public  woiks  of  engineering  nature,  where  strict  com- 
pliance with  act  impossible  or  inconvenient,  see  same  act,s.  66, 
post,  App. 

(c)  3  &  4  Vict.  c.  97,  s.  5  ;  7  &  8  Vict.  c.  85,  s.  15  ;  App. 

(d)  3  &  4  Vict.  c.  97,  ss.  5  and  6,  App. 

(e)  5  &  6  Viet.  c.  55,  s.  4,  App. 
(/)  Ibid.  s.  5,  App. 


332       Regulation,  S,c.  of  Railway  Companies. 

railway  continues  so  open,  {g)  But  the  order  of  the 
Board  to  be  binding  must  be  accompanied  by  a  copy 
of  the  report  on  which  it  is  founded,  (o-) 

457.  Returns,  8,-c.  The  Board  of  Trade  may 
order  returns  to  be  made  by  railway  companies,  ac- 
cording to  a  form  to  be  provided  by  the  Board,  of 
the  aggregate  traffic  on  the  line,  as  well  as  of  all 
accidents  thereon  attended  with  personal  injury, 
and  also  a  table  of  their  tolls,  charges,  &c. ;  and  in 
case  such  returns  are  not  made  witJiin  thirty  days 
after  they  are  required,  the  company  are  liable  to  a 
penalty  of  20/.  for  every  day  that  they  wilfully 
neglect  to  make  the  same,  {li)  Any  officer  of  a 
company  wilfully  making  a  false  return  is  guilty  of 
a  misdemeanour,  (i)  In  case  of  accidents  upon  a 
railway  attended  with  serious  personal  injury  to  the 
public  using  the  same,  a  cumulative  provision  is 
made,  which  requires  notice  of  any  such  accident  to 
be  given  to  the  Board  of  Trade  within  forty-eight 
hours  after  its  occurrence.  Any  wilful  omission  on 
the  part  of  a  company  to  give  such  notice  subjects 
them  to  a  penalty  of  20/.  for  every  day  that  the 
omission  continues,  {k)  The  Board  of  Trade  are 
further  empowered  to  call  for  a  return  of  serious 
accidents  occurring  in  the  course  of  the  public  traffic 
on  the  railway,  whether  attended  with  personal  in- 
jury or  not,  in  such  form,  &c.  as  they  may  deem  ne- 
cessary to  their  information  with  a  view  to  the  public 
safety  ;  and  if  such  returns  are  not  made  within 
fourteen  days  after  they  are  required,  the  company 

{g)  5  &  6  Vict.  c.  55,  s.  6,  A  pp. 
(/i)  3  6c  4  Vict.  c.  97,  s.  3,  App. 
(i)  Ibid.  s.  4,  App. 
{]i)  5  &  6  Vict.  c.  55,  s.  7,  App. 


Powers  of  Supervision  of  Board  of  Trade.     3S3 

forfeit  51.  for  every  day  they  neglect  to  make  the 
same.  (/)  Such  returns,  however,  are  made  privi- 
leged communications.  (/) 

458.  Bye-laws.  A  further  jurisdiction  (??0  is 
given  to  the  Board  of  Trade  in  regard  of  any  bye- 
laws,  &c.,  made  by  a  company  under  the  powers  of 
their  act.  No  such  bye-laws,  6ic.  are  valid  until  two 
calendar  months  after  a  certified  copy  thereof  has 
been  laid  before  the  Board  of  Trade,  unless  before 
that  time  they  are  approved  of  by  the  Board,  (n) 
The  Board  of  Trade  may  disallow  any  bye-law,  &c., 
and  if  at  the  time  of  such  disallowance  it  is  already 
in  force,  may  further  prescribe  the  time  at  which  it 
shall  cease  to  be.  (o)  All  provisions  of  railway 
acts  requiring  the  concurrence  of  courts  of  quarter 
sessions,  &c.  to  give  validity  to  bye-laws,  are  re- 
pealed, {p) 

459.  Disputes  betrvecn  connecting  railways,  S^c. 
about  the  conduct  of  their  joint  traffic.  Such  disputes, 
so  far  as  they  relate  to  the  safety  of  the  public,  may, 
upon  the  application  of  either  party,  be  decided  by 
the  Board  of  Trade,  who  may  also  determine  about 
the  proportion  of  the  expenses  attending  the  neces- 
sary arrangements  to  be  borne  by  either  party,  (y) 

(0  5  &  6  Vict.  c.  55,  s.  8,  App. 

(m)  For  an  important  instance  of  the  good  effect  of  the  power 
thus  reserved  to  the  Board  of  Trade,  see  Report  of  Officers  of 
Railway  Department,  1842,  p,  xv.  See  also  lb.,  1843,  App.  p. 
190.  As  to  standard  regulations  proposed  by  Board  of  Trade  in 
pursuance  of  the  authority  given  them  by  the  above  act,  see  ib. 
1841,  p.  xvii.  et  seq. 

(«)  3  3>:  4  Vict.  c.  97,  s.  8,  App.    See  8  Vict.  c.  20,  s.  109. 

(o)  3  &  4  Vict.  c.  97,  s.  9. 

(/))  Ibid.  s.  10,  App. 

(9)  5&;  6  Vict.  c.  55,  s.  11,  App.  Company  neglecting,  &c. 
to  obey  order  of  board  liable  to  a  penalty  of  20Z.  per  day.     Ib. 


334       Regulation,  S^'c.  of  Railway  Companies. 

4o0.  Level  crossings.  So  likewise,  where  a  rail- 
way company  are  willing  to  cajry  any  road,  &c.  over 
or  under  the  railway,  instead  of  crossing  the  same 
on  a  level,  the  Board  may,  on  application  of  the 
company,  and  after  hearing  the  several  parties  in- 
terested, if  it  shall  appear  to  them  that  such  level 
crossing  endangers  the  public  safety,  and  that  the 
proposal  of  the  company  does  not  involve  any  vio- 
lation of  existing  rights,  &c.,  without  adequate  com- 
pensation, authorize  the  company  to  remove  the 
danger  at  their  own  expense,  by  building  a  bridge, 
or  by  such  other  arrangement  as  the  nature  of  the 
case  shall  require,  subject  to  such  conditions  as  the 
Board  shall  direct,  (r)     And  again  they  may,  where 

(r)  5  &  6  Vict.  c.  55,  s.  13,  App.  As  to  the  meaning  of 
this  clause,  and  as  to  the  arrangements  which  the  Board  of  Trade 
will  or  will  not  sanction  by  virtue  of  it,  see  Report  of  Officers 
of  Railway  Department,  1842,  pp.  xxi.  xxii. 

"  An  application  was  made  to  the  Board  of  Trade  by  the 
Croydon  Company  to  sanction  the  diversion  of  a  road,  in  order 
to  get  rid  of  a  level  crossing  over  the  railway  at  the  Jolly  Sailor 
Station.  Notice  of  this  application  having  been  given  to  the 
board  of  surveyors  of  highways  for  the  parish  of  Croydon,  they 
objected  to  the  diversion  ;  and  the  inspector-general  having  re- 
ported that  the  diversion  being  about  a  quarter  of  a  mile  would 
be  a  serious  inconvenience  to  the  public  travelling  by  the  road, 
and  that  there  was  no  impediment  beyond  that  of  expense  to 
carrying  the  road  under  the  railway  in  the  present  line,  the 
application  was  refused.  With  reference  to  the  diversion  of 
roads  to  adjoining  bridges  in  order  to  get  rid  of  level  crossings, 
it  was  considered  that  although  such  a  measure  might  under 
certain  circumstances  come  within  the  arrangements  which  by 
the  13th  section  of  the  5  &  6  Viet.  c.  55,  the  Board  of  Trade 
were  empowered  to  direct,  yet  that  the  prima  facie  intention  of 
the  clause  being  that  the  railway  company  should  carry  the  road 
over  or  under  the  raiUvay  entirely  at  their  own  expense  without 


Vowers  of  Supervision  of  Eoard  of  Trade,     335 

they  are  satisfied  that  it  will  be  more  conducive  to 
the  public  safety,  order  the  gates  at  level  crossings 
to  be  kept  closed  across  the  railway,  instead  of 
across  the  road,  as  required  by  the  5  &  6  Vict.  c.  55, 
s.  9.  («) 

461.  Branch  Communications,  {t)     So  likewise  the 

any  violation  of  existing  rights  or  interests,  a  diversion  should 
only  be  authorized  where  engineering  difficulties  prevented  the 
making  of  a  bridge  or  tunnel  in  the  present  line  of  the  road,  or 
where  the  parties  interested  in  the  road  did  not  state  any  valid 
objection. 

Acting  on  these  principles,  a  similar  application  from  the 
Manchester  and  Leeds  Railway  Company  to  be  allowed  to  divert 
a  highway  near  their  Brighouse  Station  to  a  bridge  about 
seventy  yards  distant  was  rejected,  the  diversion  being  opposed 
by  the  trustees  of  the  road,  and  the  report  of  the  inspector- 
general  being  unfavourable.  A  subsequent  application  from  the 
London  and  Croydon  Railyvay  Company  to  be  allowed  to  carrj' 
the  road  from  Dulwich  to  Bromley  and  Lewishara,  which  crossed 
their  line  on  a  level  at  the  Dartmouth  Arms  Station,  under  the 
railway  by  a  tunnel,  making  a  moderate  deviation,  was  acceded 
to,  and  the  requisite  powers  given  in  the  terms  of  the  act.  the 
inspector  general  having  reported  that  it  was  impracticable  to 
carry  the  read  over  or  under  the  railway  in  a  direct  line." 

(s)  5  &  6  Vict.  c.  55,  s.  9,  App.  See  8  Vict  c.  20,  s.  47, 
post,  App. 

(t)  The  following  is  an  instance  in  which  the  Board  of  Trade 
has  been  called  upon  to  exercise  the  jurisdiction  vested  in  it  by 
the  19th  section  of  the  act  for  regulating  railways,  of  deter- 
mining disputes  relative  to  the  opening  of  branch  communications 
with  railways.  It  arose  in  consequence  of  a  dispute  between 
the  Great  JVorth  of  England  Railway  and  the  proprietors  of  a 
warehouse  and  brickyard  adjacent  to  the  line,  who  had  enjoyed  a 
right  of  communication  by  means  of  a  short  branch  line  with  the 
main  railway,  which  the  extension  of  traffic  consequent  on 
opening  the  line  from  York  to  Darlington  had  rendered  highly 


336        Regulatio?!,  SfC.  of  Railway  Companies. 

Board  of  Trade  is  authorized  to  determine  all  dis- 
putes and  disagreements  touching  the  proper  places 
for  openings  in  the  ledges  or  flanches  of  railways, 
in  order  to  admit  branch  communications ;  (w)  and 
the  provisions  in  various  railway  acts,  giving  the 
jurisdiction  in  such  cases  to  tw^o  justices,  are  re- 
pealed, (a:)  This  latter  branch  of  jurisdiction  is 
carried  still  further  by  the  5  &  6  Vict.  c.  55,  s.  12, 
which  empowers  the  Board  of  Trade,  in  the  case  of 
any  passenger  railway,  to  order  that  all  powers  of 
making  branch  lines  opening  into  the  flanches  of 
main  lines,  &c.  given  by  any  particular  company's 
act,  shall  only  be  exercised  upon  such  conditions  as 
the  Board  shall  direct,  where,  that  is  to  say,  it 
appears  to  the  Board  that  the  powers  in  question 
cannot  be  exercised  without  danger  to  the  public, 
iind  that  an  arrangement  can  be  made  with  a  due 
regard  to  existing  rights  of  property,  (i/) 

46:^.  Extension  of  Powers  of  Company.  The 
Board  of  Trade  may  likewise  empower  companies 
to  enter  upon  adjoining  lands  to  repair  or  prevent 
accidents,  &.c.,{z)  and  in  certain  cases,  and  under 
certain  limitations,  certify  for  the  revival  of  a  com- 

dangerous.  It  will  be  seen  from  the  report  and  correspondence 
relative  to  the  case,  Appendix,  p.  283,  that  an  amicable  arrange- 
ment was  effected  through  the  intervention  of  this  department, 
by  which  the  danger  to  the  public  was  entirely  obviated  and  the 
rights  of  the  parties  preserved;  Report  of  Officers  of  Railway 
Department,  1842,  p.  xxi. 

(«)  3  &  4  Vict,  c,  97,  s.  19,  App. 

(i)  Ibid.  s.  18,  App. 

(i/)  5  &  6  Vict.  c.  55,  s.  12,  App.  For  definition  of  pas- 
senger railway,  see  ibid. 

(s)  5  &  6  \ict.  c.  55,  s.  11,  App. 


Powers  of  Supervision  of  Board  of  Trade.     337 

pany's  compulsory  powers  of  purchasing  and  taking 
land,  (a) 

462.  Legal  ^proceedings,  (h)     The  Board  of  Trade 

(a)  5  &  6  Vict.  c.  55,  s.  15,  App, 

(b)  The  Board  of  Trade  has  been  called  upon  in  several 
cases  to  exert  the  powers  vested  in  it  by  Lord  Seymour's  Act,  in 
order  to  prevent  alleged  deviations  on  the  part  of  railway  com- 
panies from  the  provisions  of  their  acts  and  of  the  general  law, 
but  it  has  not  been  found  necessary  to  institute  any  prosecution 
for  that  purpose. 

In  April,  1841,  an  application  was  made  to  the  railway  de- 
partment of  the  Board,  to  interfere  for  the  purpose  of  preventing 
the  Glasgow  and  Greenock  Railway  Company  from  indirectly 
becoming  steam  boat  proprietors,  for  the  purpose  of  forwarding 
passengers  by  the  railway  to  places  beyond  Greenock,  and 
acquiring  a  monopoly  of  the  whole  passenger  traffic  on  the 
Clyde.  After  a  full  consideration  of  the  circumstances,  it  was 
determined  that  this  was  not  a  case  in  which  the  Board  of 
Trade  could  interfere,  on  the  following  grounds,  which  may  be 
stated  as  illustrative  of  the  principles  upon  which  their  lord- 
ships have  acted  in  the  exercise  of  the  power  of  instituting 
prosecutions  against  railway  companies,  vested  in  them  by  Lord 
Seymour's  Act,  &c.,  in  cases  where  personal  safety  is  not  con- 
cerned : 

1st.  That  this  power,  being  of  an  extraordinary  nature,  is  only 
to  be  exercised  in  cases  where  it  is  quite  clear,  1st,  that  the  con- 
duct of  the  railway  company  is  illegal ;  2nd,  that  it  is  contrary 
to  public  policy  and  injurious  to  public  interests. 

2nd.  That  in  the  present  case  neither  of  these  points  was  suf- 
ficiently established,  for  although  it  is  clearly  illegal  for  a  com- 
pany incorporated  for  a  specific  purpose,  such  as  making  a  rail- 
way, to  undertake  a  different  and  distinct  branch  of  business,  yet 
in  the  present  instance  it  might  be  fairly  a  question  whether  the 
employing  steam  boats  to  forward  passengers  from  the  terminus 
of  the  railway  was  not  incidental  to  the  main  business  and  a 
public  convenience  ;  and  at  any  rate  it  did  not  appear  that 
•whatever  might  be  the  ultimate  object  of  the  railway  company 
any  loss  was  in  the  meantime  sustained  by  the  public,  but  rather 

Q 


338      Regulations,  SfC.  of  Railway  Companies. 

have  a  further  jurisdiction  to  decide  in  certain  cases 
on  the  propriety  of  taking  legal  proceedings  against 
railway  companies.  Whenever  it  shall  appear  to 
the  Board  that  any  of  the  provisions  of  the  several 
acts  of  parliament  regulating  any  railway  company, 
or  the  provisions  of  any  general  act  relating  to  rail- 
ways, have  not  been  complied  with  on  the  part  of 
any  railway  company  or  any  of  its  officers,  or  that 
any  railway  company  has  acted  or  is  acting  in  a 
manner  unauthorized  by  the  provisions  of  the  act 
or  acts  of  parliament  relating  to  such  railway,  or  in 
excess  of  the  powers  given  and  objects  defined  by 
the  said  act  or  acts,  and  it  shall  also  appear  to  the 

that  a  certain  class  of  passengers  were  conveyed  part  of  the 
distance  at  lower  fares  than  had  been  charged  before  the  opening 
of  the  railway. 

The  next  application  was  one  complaining  of  the  conduct  of 
the  Clarence  Railway  Company,  in  having  illegally  laid  down 
a  new  branch  across  a  public  road  under  circumstances  involving 
great  danger.  The  inspector-general  was  instructed  to  visit  the 
line,  and  from  his  report,  which  with  the  complainant's  memorial 
and  other  documents  relative  to  the  affair  are  given  in  the  Ap- 
pendix, p.  286,  it  appeared  that  the  branch  line  complained  of 
was  absolutely  necessary,  in  order  to  conduct  the  traffic  upon  the 
railway  in  safety,  and  that  with  certain  precautions  and  alterations 
pointed  out  in  the  report  there  was  no  reason  to  apprehend  that 
the  public  safety  would  be  endangered.  Under  these  circum- 
stances it  vv-as  considered,  that  although  the  right  of  the  railway 
company  to  cross  the  highway  might  be  doubtful,  yet  as  the 
measure  was  on  the  whole  conducive  to  the  public  safety  the 
Board  of  Trade  should  not  interfere,  on  condition  of  receiving 
an  assurance  from  the  railway  company  that  the  various  pre- 
cautions specified  in  the  inspector-general's  report  should  be  com- 
plied with.  This  assurance  was  given  and  proper  steps  were  to 
be  taken  to  ascertain  that  it  was  duly  fulfilled. — Report  of 
Officers  of  Railway  Department,  1842,  p.  xxi. 


Powers  of  Supervision  of  Board  of  Trade.     33d 

Board  that  it  would  be  for  the  public  advantage  that 
the  company  should  be  restrained  from  so  acting, 
the  Board  are  to  certify  the  same  to  the  proper  law- 
officer  of  the  crown,  who  shall  thereupon  proceed 
against  the  company  according  to  the  circumstances 
of  the  case,  viz.  by  information,  action,  &c.  for 
penalties,  &c.  in  cases  of  mere  nonfeasance,  or  in 
cases  of  acts  of  commission  by  suit  in  equity,  &c. 
for  an  injunction,  &c.  (c)  No  such  certificate  is  to 
be  given,  until  twenty^one  days  after  notice  to  the 
company  of  the  intention  to  give  the  same ;  and  no 
legal  proceedings  are  to  be  taken  under  the  authority 
of  the  Board,  except  upon  such  certificate,  and  within 
one  year  after  the  commission  of  the  offence,  (d) 

II.   Provisions  for  the  Enlargement  of  Powers  of 
Railway  Companies. 

463.  The  Board  of  Trade  may  empower  any 
railway  company,  in  case  of  any  accident  or  slip 
happening  or  being  apprehended  to  any  cutting,  em- 
bankment or  other  work  belonging  to  them,  to  enter 
upon  any  lands  adjoining  their  railway  for  the  pur- 
pose of  repairing  or  preventing  such  accident,  and 
to  do  such  works  as  may  be  necessary  for  the  pur- 
pose. In  cases  of  necessity,  the  company  may 
enter,  &c.,  without  having  obtained  the  previous 
sanction  of  the  Board.  In  every  such  case,  how- 
ever, the  company  must,  within  forty-eight  hours 
after  such  entry,  report  the  particulars  to  the  Board; 
and  such  powers  determine,  if  the  Board,  after  con- 
sidering the  report,  certify  that  their  exercise  is  not 

(c)  7  &  8  Vict.  c.  85,  s.  17,  App. 

(d)  Ibid.s.  18,  App. 

Q  2 


^40      Regulations,  ^c.  of  Railway  Companies. 

necessary  for  the  public  safety.  The  works  are  to 
be  as  little  injurious  to  the  adjoining  lands  as  the 
nature  of  the  case  admits,  and  are  to  be  executed 
with  all  possible  dispatch  ;  and  full  compensation  is 
to  be  made  to  owners  and  occupiers,  the  amount  in 
case  of  dispute  to  be  determined  in  the  manner  pre- 
scribed by  the  company's  act  for  settling  cases  of 
disputed  compensation  generally,  (e) 

464.  After  the  expiration  of  the  company's  com- 
pulsory powers,  it  is  sometimes  found  necessary  for 
the  public  safety  that  additional  land  should  be 
taken  for  the  purpose  of  giving  increased  width  to 
the  embankments  and  inclination  to  the  slopes  of 
railways,  or  for  making  approaches  to  bridges  or 
archways,  or  for  doing  such  works  for  the  repair  or 
prevention  of  accidents  as  hereinbefore  described. 
Where  the  Board  of  Trade  certify  that  this  is  the 
case,  the  company's  compulsory  powers  of  taking 
land,  &c.,  as  regards  the  land  mentioned  in  the  cer- 
tificate, revive  for  the  further  period  mentioned  in 
such  certificate.  Before  applying,  however,  for  such 
certificate,  fourteen  days'  notice  in  writing  must  be 
given  by  the  company  in  the  manner  prescribed  by 
their  act  for  serving  notices  on  land  owners,  to  the 

(e)  5  &  6  Vict.  c.  55,  s.  14,  App.  "Where  a  slip  took  place 
on  the  line  of  railway,  and  the  company  thereupon  entered 
upon  the  adjoining  land  and  began  digging  without  permission, 
and  without  subsequently  reporting  the  same  to  the  Board  of 
Trade,  this  was  ruled  not  to  be  within  the  above  section ;  but  it 
being  proved  by  affidavit  that  the  steps  taken  by  the  company 
were  necessary  for  the  public  safety,  and  there  having  been  a 
subsequent  treating  between  the  parties,  an  injunction  was  re- 
fused, but  the  company  with  the  consent  of  their  counsel  was 
ordered  to  pay  into  court  a  certain  sum  of  money ;  Touer  v. 
Eastern  Counties  Railway  Company,  3  Railw.  Cas.  381. 


Enlargement  of  Powers  of  a  Railway  Company.   341 

parties  interested  in  the  land,  or  such  of  them  as 
are  known  to  the  company,  and  any  of  those  par- 
ties, if  they  apply  within  that  time,  are  to  be  heard 
by  the  Board  before  granting  the  certificate ;  and  if 
the  application  is  refused,  the  directors  may  be  re- 
quired by  the  Board  to  pay  the  expenses  incurred 
in  resisting  the  application,  (f) 

(/)  5  &  6  Vict.  c.  55,  s.  15,  App.  The  passing  of  the 
act,  5  &  6  Vict.  c.  55,  for  the  better  regulation  of  railways,  has 
led  to  several  applications  from  railway  companies  for  powers  to 
take  land  required  for  purposes  of  public  safety.  The  first  and 
most  important  of  these  applications  was  from  the  London  and 
Croydon  Railway  Company,  who  memorialized  the  Board  to 
grant  a  certificate  reviving  their  compulsory  powers  of  purchasing 
several  parcels  of  land,  amounting  in  the  whole  to  fifty-four 
acres,  two  roods  and  twenty  perches,  for  the  purpose  of  widening 
the  cutting  at  Nevr  Cross  and  Forest  Hill,  where  so  many  slips 
had  taken  place.  Objections  to  this  application  having  been 
lodged  on  the  part  of  the  Earl  of  St.  Germans  and  other  pro- 
prietors of  the  land  in  question,  the  representatives  of  the  railway 
company  and  of  the  objecting  parties  were  heard  before  the  vice- 
president  of  the  Board  of  Trade ;  but  as  the  inspector-general 
reported  his  decided  opinion  that  the  whole  of  the  land  was  re- 
quired for  purposes  connected  with  the  public  safety,  and  conces- 
sions were  made  on  the  part  of  the  company  which  satisfied  the 
principal  parties,  the  objections  were  not  insisted  upon,  and  a 
certificate  was  given,  by  which  the  compulsory  powers  of  pur- 
chasing contained  in  the  Croydon  Company's  Acts  were,  as  re- 
garded the  portions  of  land  in  question,  I'evived  for  a  period  of 
twelve  months.  In  the  course  of  the  discussion  a  question  was 
raised,  whether  land  required  for  the  purpose  of  throwing  to 
spoil  the  earth  cut  away  in  the  process  of  widening  slopes  came 
within  the  meaning  of  the  fifteenth  clause  of  the  5  &  6  Vict, 
c.  55  ;  but  as  it  appeared  from  the  report  of  the  inspector-general 
that  the  creation  of  a  spoil  bank  in  the  vicinity  of  the  cutting 
was  in  the  case  in  question  essential  for  the  public  safety,  and  in 
fact  part  and  parcel  of  the  integral   process  of  widening  the 


342      Regulations,  ^-c.  of  Railway  Compatiies. 

465.  The  act  further  provides,  that  carriages  of 
greater  weight  than  four  tons  may  be  used  on  rail- 
ways, and  repeals  the  provisions  of  the  various  rail- 
way acts  limiting  the  weight  to  four  tons,  (o-) 

III.  Regulations  of  Police, 

460.  It  is  proposed,  in  the  next  place,  to  notice 
the  provisions  made  by  the  legislature  for  the  punish- 
ment of  offences  committed  on  the  railway  and  works 
connected  therewith,  and  calculated  to  compromise 
the  safety  of  the  traffic  on  the  line  of  railway,  or 
otherwise  to  interfere  with  the  due  conduct  of  the 
company's  business,  (h)  There  are  two  cases  here 
provided  for:  1st,  offences  committed  by  persons 
employed  upon  the  railway ;  and  2ndly,  those  com- 
mitted by  persons  in  general. 

467.  1st.  Any  officer  or  agent  of  any  railway 
company,  or  any  special  constable  duly  appointed, 
and  all  such  persons  as  they  may  call  to  their  assist- 

slope,  it  was  considered  that  the  clause  fully  warranted  the  ex- 
tension of  the  certificate  to  all  the  land  required. 

In  two  other  cases  certificates  were  given  for  small  portions 
of  land  to  the  Croydon  and  Brighton  Companies,  no  parties 
having  appeared  to  state  objections,  and  the  inspector- general 
having  reported  that  the  land  was  required  for  the  purpose  of 
insuring  the  public  safety.  See  Report  of  Officers  of  Railway 
Department,  1842,  p.  xxi.;  see  further  as  to  same  point,  Report 
of  Officers  of  Railway  Department,  1843,  App.  p.  167,  172. 

(g)  5  &  6  Vict.  c.  55,  s.  16,  App. 

(ft)  As  to  penalty  for  obstructing  parties  engaged  in  setting 
out  line  of  railway,  under  Railway  Clauses  Consolidation  Act, 
(8  Vict.  c.  20,)  see  act,  s.  24,  post,  App.  Also  as  to  penally 
on  passengers  practising  frauds  on  companies,  and  power  of 
detaining  offenders,  given  in  such  case  to  company  under  same 
act,  see  ib.  ss.  103,  104. 


Regulations  of  Police.  343 

ance,  may  seize  and  detain  any  engine  driver,  guard, 
porter  or  other  servant  in  the  employ  of  such  com- 
pany who  shall  be  found  drunk  wliile  employed  upon 
the  railway,  or  commit  any  offence  against  any  of  the 
bye-laws,  rules  or  regulations  of  such  company,  or 
shall  wilfully,  maliciously  or  negligently  do  or  omit 
to  do  any  act  whereby  the  life  or  limb  of  any  person 
passing  along  or  being  upon  the  railway  belonging 
to  such  company,  or  the  works  thereof  respectively, 
shall  be  or  might  be  injured  or  endangered,  or 
whereby  the  passage  of  the  engines,  carriages  or 
trains  shall  be  or  might  be  obstructed  or  impeded, 
and  convey  the  party  so  offending,  or  any  person 
counselling,  aiding  or  assisting  in  such  offence,  with 
all  convenient  dispatch,  before  some  justice  of  the 
peace  for  the  place,  &c.  If  convicled,  the  offender 
may  be  imprisoned,  with  or  without  hard  labour,  for 
a  period  not  exceeding  two  months,  or  fined  a  sum 
not  exceeding  10/.,  and  in  default  of  payment,  may 
be  imprisoned  for  the  above  period  or  until  he  pays 
the  fine.  (?) 

The  justice,  instead  of  deciding  summarily,  may 
send  the  case  to  the  quarter  sessions,  and  in  the 
meantime  either  commit  the  party  to  prison  or  take 
bail  for  his  appearance,  with  or  without  sureties ;  if 
convicted  at  the  quarter  sessions,  he  may  be  impri- 
soned, with  or  without  hard  labour,  for  any  period 
not  exceeding  two  years,  (k) 

The  above  provision  for  the  punishment  of  the 
servants  of  railway  companies  is  now  extended  and 
made  to  embrace,  not  merely  servants,  &c.  of  the 
company,  but  likewise  all  persons  employed  either 

(i)  3  &  4  Vict.  c.  97,  s.  13,  App. 
(/<)  Ibid.  s.  14,  App. 


344      Regulations,  Sfc.  of  Railway  Companies. 

by  the  company  or  any  other  person,  &c.  in  con- 
ducting traffic  upon  the  railway,  or  in  repairing  and 
maintaining  the  works  of  the  railway.  (/) 

468.  In  case  of  offences  committed  in  Scotland, 
the  sheriff,  or  other  magistrate  acting  for  the  dis- 
trict within  which  such  offence  shall  be  committed, 
or  where  such  offender  shall  be  apprehended,  is  to 
have  the  like  jurisdiction  as  the  justice  of  the  peace 
in  England,  (m) 

469.  2ndly.  Of  offences  committed  by  persons 
ia  general  to  tlie  obstruction  of  the  traffic  on  the 
railway,  trespasses,  &c.  Every  person  who  shall 
wilfully  (n)  do  or  cause  to  be  done  any  thing  in 
such  manner  as  to  obstruct  any  engine  or  carriage 
using  any  railway,  or  to  endanger  the  safety  of  per- 
sons conveyed  in  or  upon  the  same,  or  shall  aid  or 
assist  therein,  is  guilty  of  a  misdemeanour,  and 
being  convicted  thereof  may  be  imprisoned,  with 
or  without  hard  labour,  for  any  term  not  exceeding 
two  years. 

And  any  person  who  wilfully  obstructs,  &c.  any 
officer,  &c.  of  the  company  in  the  execution  of  liis 
duty  upon  the  railway,  &c.  or  who  wilfully  tres- 
passes (o)    upon    the  railway,  &c.,  and   refuses  to 

(0  5  it  6  Vict.  c.  55,  s.  17,  App. 

(to)  Ibid.  s.  18,  App. 

(n)  3  &  4  Vict.  c.  97,  s.  15,  App.  A  party  is  liable  to 
be  indicted  under  this  clause  if  he  intentionally  places  on  a  rail- 
way substances  having  a  tendency  to  produce  an  obstruction  of 
the  carriages,  (knowing  them  to  be  such,)  though  he  may  not 
have  done  the  act  expressly  with  that  object ;  Reg.  v.  Holroyd, 
2  M.  &  Rob.  339. 

(o)  A  party  is  a  wilful  trespasser  within  the  meaning  of  this 
clause,  and  therefore  liable  to  be  apprehended  and  carried  before 
a  magistrate.  Sec,  who  goes  across  the  railway  from  one  part  of 


I 


Regulations  of  Police.  345 

depart  upon  being  requested  so  to  do  by  any  officer, 
&c.  of  the  company,  as  also  any  one  aiding,  &c. 
therein,  may  be  apprehended  and  taken  before  a 
justice  of  the  peace,  &c.  and  fined  any  sum  not 
exceeding  five  pounds,  and  in  default  of  payment 
may  be  committed  for  any  term  not  exceeding  two 
calendar  months,  or  until  he  pays  the  fine,  (j:)) 

IV.  Provisions  qualifying  or  extending  the  Duties,  8^'C. 
of  Railway  Companies. 

It  is  proposed  in  the  next  place  to  show  in  what 
respects  the  duties,  &c.  obligatory  on  railway  com- 
panies are  varied  or  enlarged  by  the  provisions  of 
any  general  railway  act. 

470.  In  the  first  place,  they  are  to  give  certain 
notices  of  the  intended  opening  of  their  line,  &c.  and 
to  make  certain  returns  of  the  traffic  on  their  line, 
accidents,  &c.  to  the  Board  of  Trade.  {c[) 

Gates  at  any  level  crossing  over  a  road  are  to  be 
kept  closed  across  the  road,  instead  of  across  the 
railway,  unless  where  the  Board  of  Trade  direct 
otherwise,  which  they  are  empowered  to  do  where 
they  are  satisfied  that  it  will  be  more  conducive  to 
the  public  safety.  (»•) 

Railway    companies    are   to  erect,   maintain    and 

his  land  to  another,  after  his  right  of  doing  so  is  taken  away  by 
an  arrangement  with  the  company  made  on  the  footing  of  there 
being  a  total  separation  of  his  land  ;  Manning  v.  Eastern  Counties 
Railway  Companii,  12  iM.  &  W.  '237. 

(p)  3  &  4  Vict.  c.  97,  s.  16,  App.  Sec  5  &  6  Vict.  c.  55, 
s.  18,  App. 

(9)  See  ante,  p.  331,  et  seq. 

(1)  5  &  6  Vict.  c.  55,  s.  9,  App.  See  8  Vict.  c.  20,  s.  47, 
post,  App. 

Q  O 


346     Regulations,  <§'c.  of  Railway  Companies. 

repair  good  and  sufficient  fences  throughout  the 
whole  of  their  respective  lines,  just  the  same  as  if 
directed  so  to  do  by  an  order  of  justices  made  under 
the  authority  of  their  respective  acts.  (5)  They  are 
likewise  to  permit  military  and  police  forces,  &c. 
with  their  baggage,  &c.  (t)  to  be  conveyed  at  the 
usual  hours  of  starting,  at  such  prices  or  upon  such 
conditions  as  may  from  time  to  time  be  contracted 
for  between  the  Secretary  at  War  and  such  railway 
companies  for  the  conveyance  of  such  forces,  on  the 
production  of  a  route  or  order  for  their  conveyance 
signed  by  the  proper  authorities.  They  are  likewise 
to  afford  certain  facilities  for  the  transmission  of  the 
mails,  (h)  and  to  allow  lines  of  electrical  telegraph 
to  be  established,  (x)  Lines  established  by  private 
parties,  &c.,  it  may  be  remarked,  are  to  be  open  to 
the  public,  (tj) 

471.  Companies  incorporated  by  any  act  of  the 
session  q/'!844,  or  any  subsequent  session,  or  which 
thereby  have  obtained  or  shall  obtain  any  extension 
or  amendment  of  their  powers,  or  have  been  or  shall 
be  authorized  to  do  any  act  unauthorized  by  the 
provisions  of  their  previous  acts,  are  subject  to  still 
more  stringent  obligations.  They  are  to  convey 
military  and  police  forces,  S;c.  with  their  baggage, 
stores,  &c.,  at  certain  rates  and  upon  certain  con- 
ditions specified  by  the  legislature,  (z) 

(s)  5  &  6  Vict.  c.  55,  s.  10,  App.  See  also  8  Vict.  c.  20^ 
s.  68,  et  seq.  post,  App. 

(0  5  &  6  Vict.  c.  55,  s.  20,  App. 

(«)  7  &  8  Vict.  c.  85,  s.  11,  App.  j  1  &  2  Vict.  c.  98. 

(j.)  7  &  8  Vict.  c.  85.  s.  13,  App. 

(y)  Ibid.  s.  14,  App. 

(z)  Ibid.  c.  85,  s.  12,  App. 


Provisions  extending  Duties  of  Railway  Companies.  347 

472.  ^11  passenger  railway  companies  so  incor- 
porated, &c.  are  to  provide  one  cheap  train  each  way 
daily,  subject  to  the  conditions  prescribed  by  the 
legislature,  (a)  and  are  liable  to  a  penalty  for  non- 
compliance. 

The  Board  of  Trade  have  a  discretionary  power  of 
allowing  alternative  arrangements  in  regard  of  such 
cheap  trains,  except  as  to  the  amount  of  fare,  and  in 
case  the  company  conform  to  these,  they  are  not 
liable  to  the  above  penalty.  (6)  Where  companies, 
subject  to  the  above  obligation,  run  trains  on  Sun- 
days, they  must  likewise  provide  suflicient  carriages 
for  the  conveyance  of  third-class  passengers  by  such 
train  each  way  as  stops  at  the  greatest  number  of 
stations,  and  this  at  all  the  stations,  both  terminal 
and  other,  at  which  such  Sunday  train  may  ordinarily 
stop,  the  fare  not  to  exceed  one  penny  per  mile,  (c) 

V.  Of  the    Conditions  attached  to  future  Grants  of 
Parliamentary  Powers  for  the  making  of  Railways, 

473.  Passenger  railways,  authorized  by  an  act  of 
the  session  of  1844,  or  any  subsequent  session  of 
parliament,  are  subjected  to  certain  conditions  for 
the  benefit  of  the  public.  If  at  any  time  after  the 
expiration  of  twenty-one  years  from  the  1st  of 
January  next  after  the  passing  of  their  act,  the 
company's  profits,  upon  an  average  of  the  three 
then  last  preceding  years,  equal  or  exceed  ten  per 
cent.,  the  Lords  of  the  Treasury  may,  subject  to 
certain  provisions  made  by  the  legislature  in  that 

(a)  7  &  8  Vict.  c.  85,  s.  6,  App.     As  to  penalty  for  non- 
compliance, see  ib.  s.  7,  App. 
(6)  Ibid.  s.  8,  App. 
(c)  Ibid.  s.  10,  App. 


348      Regulations,  Sj-c.  of  Railway  Companies. 

behalf,  revise  the  scale  of  the  company's  charges, 
and  fix  a  new  scale ;  or,  whatever  be  the  rate  of 
profit,  may,  at  the  like  period,  and  subject  to  the 
provisions  prescribed  in  that  behalf,  purchase  the 
railway  and  its  appurtenances  on  behalf  of  the 
crown,  {d)  Such  option  of  revision  or  purchase  is 
not,  however,  to  apply  to  railways  authorized  by  the 
legislature  previously  to  the  session  of  1844  ;  neither 
is  any  branch,  S;c.  of  less  than  five  miles  in  length 
to  be  deemed  a  new  railway  within  the  provisions 
of  the  act  giving  such  option  ;  nor  is  the  option  of 
purchase  to  be  exercised  as  regards  any  branch,  &c. 
without  including  the  principal  railway  in  the  pur- 
chase, if  the  company  so  require,  (e) 

To  render  the  above  option  available,  the  com- 
pany are  to  keep  accounts  of  their  receipts  and  pay- 
ments during  the  last  three  years;  and  sucl)  accounts 
are  to  be  open  to  inspection.  (/) 

•  (d)  7  &  8  Vict.  c.  85,  ss.  1,  2,  4,  App. 
(e)  Ibid.  s.  3,  App. 
(/)  Ibid.  s.  5,  App. 


(     349     ) 


CAP.  VII. 

Of  Remedies. 

Part  I. — Of  Remedies  for  or  against  Eailway  Companies. 
II. — Of  Remedies  between  Individual  Shareholders. 


PART  I. 

Of  Remedies  for  or  against  Railway  Companies. 

Sect.  I. — Of  Remedies  for  Railway  Companies  against  Share- 
holders. 
II. — Of  Remedies  for  Railway  Companies  against  Strangers. 
III. — Of  Remedies  for  Shareholders  against  Company. 
IV. — Of  Remedies  for  Strangers  against  Company. 


Sect.  I. — Of  Remedies  for  Company  against 
Shareholders,  (a) 

I.— At  Law. 
II. — In  Equity. 

474.  I.  At  law.  The  main  duty  which  a  railway 
act  imposes  on  the  individual  members  of  the  com- 
pany is  that  of  paying  the  amount  of  their  respective 
subscriptions  in  such  parts  and  proportions,  and  at 
such  times,  as  they  are  called  on  to  do  by  the  com- 
pany under  the  provisions  of  their  act.  The  reme- 
dies, (bi)  therefore,  to  which  the  company  is  entitled 

(a)  As  to  service  of  notices  on  shareholders  under  Companies 
Clauses  Consolidation  Act  (8  Vict.  c.  16),  see  act,  s.  136,  post, 
App. 

(6)  As  to  remedy  for  company  against  directors,  see  Imperial 
Gas  Company  v.  Clarke,  7  Bing.  95. 


350    Remedies  for  or  against  Railway  Companies. 

at  law  against  its  members  are  in  general  confined  to 
the  particular  instance  of  a  nonpayment  o{  calls. 

475.  If  an  Irish  company,  whose  concerns  are  all 
carried  on  in  Ireland,  bring  an  action  for  calls  in 
England,  they  may  be  compelled  to  give  security  for 
costs,  and  this,  notwithstanding  they  have  money  in 
a  banker's  hands  in  London,  and  many  of  the  mem- 
bers reside  in  England,  (c)  And  the  same  rule  ap- 
plies to  a  Scotch  Company,  though  possessed  of 
money  and  exchequer  bills  in  their  banker's  hands 
in  London,  {d) 

476.  Declaration,  (e)  The  act  incorporating  the 
company  usually  gives  a  concise  form  of  declara- 
tion (/)  in  actions  for  calls.  Although  the  declara- 
tion does  not  follow  the  form  given  by  the  act,  yet,  if 
it  disclose  a  possible  state  of  things  under  which  the 
defendant  might  be  liable  by  virtue  of  the  act  of 
parliament,  or  if  it  contain  what  is  tantamount  to 
an  ordinary  indebitatus  count,  it  may  still  be  sup- 
ported, at  any  rate  upon  general  demurrer ;  {g)  as, 
for  instance,  where  the  declaration  stated  that  the 
defendant,  before  the  commencement  of  the  suit, 
being  a  proprietor  of  divers  shares,  before  and  at  the 

(c)  Limerick  and  Waterford  Railway  Company  v.  Fraser,  4 
Bing.  394. 

(d)  Edinburgh  and  Leilh  Railway  Company  v.  Dawson,  3 
Jar.  55. 

(e)  As  to  when  necessary  to  bring  action  within  particular 
jurisdiction,  see  post,  p.  356,  and  Diindalk  Western  Railway 
Company  v.  Tapster,  1  A.  &  E.  N.  S.  667  ;  S.C.2  Railw.  Cas. 
586. 

(/)  See  Companies  Clauses  Consolidation  Act  (8  Vict, 
c.  16),  sect.  26,  post,  App. 

(g)  The  Aylesbury  Railway  Company  v.  Mount,  4  M.  &  Gr. 
651. 


Remedies  for  Compaiiy  against  Shareholders.    351 

commencement  of  the  suit,  was  and  still  is  indebted 
in,  &c.,  whereby  and  by  reason  of  the  same  being 
unpaid,  the  defendant  still  is  indebted,  &c. 

477.  Where  the  declaration  charges  a  party  as 
subscriber,  it  need  not  disclose  an  obligation  by 
deed,  unless  indeed  the  act  requires  such  a  mode  of 
obligation  as  indispensable  to  constitute  a  subscriber. 
The  subscription  deed,  at  any  rate,  it  can  in  no  case 
be  necessary  to  declare  upon  specially  and  directly, 
inasmuch  as  being  executed  before  the  passing  of 
the  act,  and  consequently  before  the  existence  and 
formation  of  the  company,  the  company  can  be  no 
party  to  it.  (A)  Even  assuming,  however,  a  subscrip- 
tion by  deed  to  be  necessary  to  support  an  action 
against  a  party  "as  subscriber,"  and  that  in  strict- 
ness it  ought  to  be  alleged,  yet  the  omission  is  cured 
by  verdict,  {h) 

478.  Where  the  statute  gives  a  right  to  recover 
what  is  due  for  calls  including  interest,  it  is  not 
necessary  to  insert  in  the  declaration  a  count  for 
interest,  nor  ought  the  amount  of  the  interest  to  be 
added  by  the  plaintiffs  to  the  calls,  but  it  may  be 
recovered  as  damages  for  the  detention  of  the 
debt,  {i) 

479.  If  the  declaration  states  the  appearance  of 
the  company  by  attorney,  and  the  defendant  pleads 

(/i)  The  Great  Korth  of  England  Railway  Company  v.  Bid- 
dulph,  2  Railw.  Cas.  420  ;  S.  C.  7  M.  &  W.  243. 

(i)  Southampton  Dock  Company  v.  Richards,  2  Railw.  Cas. 
215;  S.  C.  1  M.&  Gr.  448  ;  see  also  London  and  Brighton 
Railway  Company  v.  Fairclottgh,  2  M.  &  Gr.  690.  But  if  in 
such  case  defendant  suffer  judgment  by  default,  a  rule  to  com- 
pute cannot  be  had,  but  there  must  be  a  writ  of  inquiry;  Chel- 
tenham and  Great  Western  Union  Railwav  Company  v.  Fry,  7 
Dowl.  P.  C.  616. 


352     Remedies  for  or  against  Railway  Companies. 

over,  the  appointment  of  the  attorney  may  be  pre- 
sumed to  be  under  the  seal  of  the  company,  (k) 

480.  Next,  of  the  grounds  of  defence  to  an  action 
for  calls,  &c.  A  shareholder,  when  sued  for  calls, 
will  not  be  allowed  to  plead  matter  which  is  either 
not  essential  to  the  justice  of  his  case,  or  contrary  to 
the  policy  and  provisions  of  the  company's  act  of 
incorporation.  In  general,  a  railway  act  expressly 
provides  (I)  what  proof  the  company  must  adduce  to 
entitle  themselves  to  recover  in  an  action  for  calls, 
viz.  proof  of  the  call  being  in  fact  made,  of  the 
defendant's  being  a  proprietor,  and  of  notice  being 
given  pursuant  to  the  act.  Those  three  facts  exist- 
ing, the  defendant  is  prima  facie  liable,  and  can  only 
defend  himself  by  denying  those  facts,  or  by  show- 
ing matter  subsequent  which  goes  to  avoid  their 
effect,  such  as  payment,  release,  or  a  forfeiture  of 
the  defendant's  share  declared  by  the  directors,  (to) 
and  confirmed  and  adopted  by  the  company  pursuant 
to  the  provisions  of  their  act,  &c.  A  defendant, 
therefore,  cannot  be  allowed,  under  an  act  containing 
the  above  provisions  touching  the  measure  of  proof, 
to  question  in  an  action  for  calls  the  constitution  of 
the  company,  the  appointment  of  the  directors,  the 
propriety  of  the  measures  of  the  company  generally, 
or  of  the  purpose  in  particular  for  which  the  calls 
forming  the  subject  of  the  action  are  made,  and  the 

(k)  Thames  Haven  Railway  Company  v.  Hall,  5  M.  &  Gr. 
274. 

(/.)  As  to  provisions  of  Companies  Clauses  Consolidation  Act 
(8  Vict.  c.  16),  on  this  head,  see  act,  s.  27,  post,  App.    • 

(m)  Per  Alderson,  B.,  in  Edinburgh,  Leith  and  Xewhaven 
Raitway  Company  v.  Hebblewhite,  2  Railw.  Cas.  246 ;  S.  C.  6 
M.  &  W.  707. 


Remedies  for  Comjmny  against  Shareholders.     353 

like  ;  (n)  for,  if  such  pleas  were  not  excluded,  there 
would  be  so  many  impediments  in  the  way  of  making 
calls,  that  no  such  undertaking  could  be  carried 
effectually  into  execution,  (o)  The  court  accord- 
ingly has  refused  defendants,  in  an  action  for  calls, 
leave  to  plead  the  following  pleas:  1.  That  there 
were  not  a  competent  number  of  directors  who  had 
paid  their  calls  present  when  the  calls  were  made ; 
2.  That  the  calls  were  made  for  purposes  not  autho- 
rized by  the  act ;  3.  That  they  were  not  made  upon 
all  the  subscribers  and  proprietors  ;  4,  nor  by  com- 
petent persons,  and  for  the  sole  purpose  of  the 
undertaking,  (p) 

481.  Next,  of  the  mode  of  pleading  the  above 
defences ;  a  defendant,  we  have  seen  in  an  action  for 

(n)  Although,  by  the  provisions  of  the  company's  act,  a  de- 
fendant may  be  precluded  from  raising  any  question  on  the 
record  as  to  the  appointment  of  the  directors,  &c.,  that  is  no 
reason  for  his  being  allowed  to  do  so  by  way  of  summary  appli- 
cation to  the  court ;  Thames  Haven  Railway  Companii  v.  Hall, 
5  M.  &  Gr.  274.  At  any  rate,  application  too  late,  if  made  after 
cause  set  down  for  trial,  and  made  a  remanet,  or  semble,  after 
judgment  by  default ;  Thames  Haven  Dock  Company  v.  Rose,  4 
M.  &  Gr.  559.  So,  after  a  cause  has  been  set  down  for  trial 
and  made  a  remanet,  an  application  to  set  aside  the  proceedings 
upon  the  ground  of  the  company  being  virtually  extinct,  and  of 
the  parties  who  brought  the  action  having  no  authority  to  do  so, 
has  been  held  too  late,  it  appearing  that  the  defendant  had 
known  all  the  facts  for  a  long  time ;  Thames  Haven  Dock  and 
Railway  Company  v.  Hall,  ubi  supra. 

(o)  London  and  Brighton  Railway  Company  v.  Wilson,  Same 
V.  Faircloiigh,  6  Bing.  N.  C.  135;  The  South-Eastern  Raihvay 
Company  v.  Hebblewhite,  2  llailw.  Cas.  247  ;  S.  C.  12  A.  &  E. 
497. 

(p)  South-Eastern  Railway  Company  v.  Hebblewhite,  ubi 
5upra. 


354;    Remedies  for  or  against  Railway  Companies. 

calls,  may  either  deny  those  facts  which  are  made 
by  the  act  essential  to  the  validity  of  a  call,  or  he 
may  plead  matter  subsequent,  by  which  the  effect  of 
those  facts  is  done  away  with.  Where  a  defendant 
intends  to  rely  on  the  former  ground  of  defence,  it 
would  seem  sufficient  for  him  simply  to  plead  never 
indebted,  because  that  plea  puts  the  plaintiffs  to 
prove  a  performance  of  the  conditions  precedent  as 
to  notice,  &:c.  which  the  act  imposes  on  them.(5') 
Special  pleas,  therefore,  denying  the  making  of  the 
call,  the  giving  of  notice,  &c.  would  seem  to  be  un- 
necessary and  even  to  be  open  to  objection  as 
amounting  to  the  general  issue.  Indeed,  as  a  general 
rule,  leave  would  not  be  granted  to  plead  such  pleas 
together  with  the  general  issue.  (»•) 

In  addition,  however,  to  the  plea  of  the  general 
issue,  it  is  not  unusual  for  a  defendant,  who  relies 
on  the  above  ground  of  defence,  to  traverse  specially 
the  fact  of  his  proprietorship,  and  this  it  seems  it  is 
allowable  for  him  to  do.  (r) 

4S2.  Although,  in  general,  a  part}-  cannot  plead 
the  plea  of  the  general  issue  and  pleas  denying  the 
notice,  Sec.  together,  still  the  court  will  permit  him, 
if  he  please,  to  plead  the  latter  in  preference  to  the 
former,  in  which  case  such  pleas  ought  to  conclude 
to  the  country,  and  not  with  a  verification  ;  for 
although  a  declaration  in  the  ordinary  statutory 
form,  taken  by  itself,  alleges  nothing  except  the  facts 

((j)  London  and  Brighton  Railway  Company  \.  Wilson;  Same 
V.  Faircloiigh,  ubi  supra  ;  Edinburgh,  Leith  and  Newhaven  Rail- 
way Company  v.  Hehblewhite,  ubi  supra. 

(r)  See  South  Easter7i  Raibvay  Company  v.  Hehhlewhite,  ubi 
supra ;  London  and  Brighton  Railway  Company  v.  WilsoTi ; 
Same  v.  Fairclongli,  ubi  supra. 


Remedies  for  Comixmy  against  Shareholders.     355 

of  the  proprietorship  and  of  the  defendant's  being 
indebted  for  calls,  still  construed  with  reference  to 
the  statute  (which  is  necessary  in  order  to  make  it 
good),  such  a  declaration  must  be  taken  impliedly 
to  include  the  averment  of  the  making  of  the  calls 
and  the  giving  of  the  requisite  notice,  being  facts 
necessary  to  be  proved  by  the  plaintiffs,  to  entitle 
them  to  recover,  (s) 

483.  Upon  a  like  ground  as  pleas  denying  notice 
of  the  calls,  &c.  are  objectionable,  is  a  plea  setting 
up  a  transfer  and  the  due  registry  thereof  under  the 
act ;  such  a  plea  goes  upon  this  ground,  that  before 
the  defendant's  liability  to  pay  arose,  an  event  oc- 
curred, viz.  the  transfer  and  the  registry,  whereby 
he  never  became  indebted  ;  it  amounts  in  short  to 
the  general  issue,  (t) 

484.  Of  defences  grounded  on  matter  subsequent. 
Forfeiture  is  a  good  defence  to  an  action  for  calls ; 
for  the  company  cannot  both  forfeit  a  party's  shares 
and  proceed  against  him  by  action.  To  constitute 
an  effective  forfeiture,  however,  there  must,  accord- 
ing to  the  usual  provisions  of  a  railway  act,  not  only 
be  a  declaration  of  forfeiture  by  the  directors,  but 
such  declaration  must  have  been  confirmed  at  some 
general  or  special  meeting  of  the  company  within  a 
given  time  of  the  directors  making  their  option,  (m) 
This  should  therefore  be  averred  in  the  plea ;  (u) 

(s)  Judgment  of  Lord  Abinger,  C.  B.,  in  Edinburgh,  Leith 
and  Newhaven  Ruiluay  Company  v.  Hebblewhite,  ubi  supra. 

(t)  The  Aylesbury  Railway  Cumpany  v.  Mount,  4  M.  &  Gr. 
668. 

(m)  The  Edinburgh,  Leith  and  Newhaven  Railway  Company 
V.  Hebblewhite,  2  Railw.  Cas.  237  ;  S.C.6  M.  &  W.  707  ;  see 
also  Birmingham,  Bristol  and  Thames  Junction  Railway  Com- 
pany V.  Locke,  1  A.  &  E.  N.  S.  256. 


356     Remedies  for  or  against  Railway  Comjjanies. 

though  the  plea,  it  seems,  is  pleadable  (that  is  to  say, 
a  court  will  allow  it  to  be  pleaded,)  without  any  aver- 
ment of  the  declaration  of  the  directors  as  to  the 
forfeiture  having  been  ratified  by  the  company,  (x) 

485.  As  in  the  case  of  calls,  the  statute  creates 
both  the  right  and  the  remedy,  the  remedy  given 
by  the  statute  must  be  strictly  pursued.  Suppose, 
therefore,  the  right  to  sue  is  limited  to  a  particular 
jurisdiction,  if  the  action  be  brought  out  of  that 
jurisdiction,  that  would  be  matter  for  a  plea  in 
bar.  {y)  Although  such  a  plea  be  pleaded  in  the 
form  of  a  plea  to  the  jurisdiction,  yet,  as  it  discloses 
matter  in  bar  of  the  action,  a  defendant  on  demurrer 
thereto  may  take  objections  to  the  declaration,  {y) 

486.  As  to  how  far  several  pleas  (z)  may  be 
pleaded  in  actions  for  calls.  Tlie  court,  in  the  ex- 
ercise of  its  discretion  under  the  statute  of  Anne, 
will  not  allow  a  plea  of  the  general  issue  and  pleas 
amounting  thereto  to  be  pleaded  together  ;  neither 
will  it  allow  of  different  pleas  being  put  on  the  record 
which  are  contrary  to  the  express  provisions  or  to 
the  policy  of  the  act,  and  are  not  essential  to  the 
justice  of  the  case,  (a) 

487.  Where  a  judge's  order  or  rule  of  court  has 
been  obtained  for  the  pleading  several  matters,  a 
plaintiff",  who  wishes  to  get  rid  of  any  of  those  pleas, 

(x)  The  Eastern  Counties  Railway  Company  v.  Cooke,  2Rail\v. 
Cas.  250  ;  S.  C.  nom.  Eastern  Counties  Eailway  Company  v. 
Cooper,  19  Law  Journ.  Q.  B.  8  ;  the  Same  v.  Fairchugh,  ibid. 

(y)  Dundalk  Western  Railway  Company  v.  Tapster,  2  Railw. 
Cas.  536  ;  S.  C.  1  A.  &  E.  N.  S.  667. 

(z)  As  to  wiien  leave  refused  to  add  plea,  see  Thames  Haven 
Dock  and  Railway  Company  v.  Hall,  5  M.  6t  Gr.  274. 

(tt)  See  ante,  p.  352,  353. 


Remedies  for  Company  against  Shareholders.    357 

should  move  to  rescind  the  order  or  rule  ;  (6)  and  on 
the  motion  for  that  purpose,  he  must  take  care  to 
inform  the  court  what  the  declaration  is,  as  other- 
wise they  cannot  decide  as  to  the  pleadings  arising 
on  it,  and  the  motion  consequently  must  be  dis- 
charged. And  the  court  in  such  a  case  will  not 
allow  an  amendment,  (b) 

488.  Where  the  company  rely  on  the  defendant's 
own  acts,  &c.  as  precluding  him  from  disputing  the 
fact  of  his  proprietorship,  they  need  not  reply  spe- 
cially the  estoppel,  it  being  mere  matter  of  estoppel 
in  pais,  (c) 

489.  Next,  as  to  questions  of  evidence.  The 
nature  of  the  evidence  that  it  may  be  necessary  for 
a  railway  company  in  any  given  case  to  adduce, 
must  of  course  depend  on  the  issues  raised  by  the 
pleadings.  There  are,  however,'  one  or  two  points 
usually  put  in  issue  in  actions  for  calls,  and  for  the 
proof  of  which  particular  provision  is  made  by  the 
company's  act ;  such  are  the  facts  of  the  defendant's 
proprietorship  and  of  the  making  of  the  calls. 

1st.  As  to  the  former.  Where  the  defendant's  pro- 
prietorship is  put  in  issue,  the  usual  proof  (rf)  of  this 
fact  is  the  company's  register  book,  which  the  act 
constitutes  primd  facie  evidence  for  the  purpose. 
To  make  the  register  book  evidence,  it  is  not  neces- 

(6)  South  Eastern  Railway  Company  v.  Sprott,  8  Dowl.  493  ; 
S.  C.  11  A.  &E.  167. 

(c)  Cheltenham  and  Great  Western  Railway  Company  v. 
Daniel,  2  Railw.  Cas.  728  ,  S.  C.6  Jut.  577. 

(d)  See  Companies  Clauses  Consolidation  Act,  (8  Vict.  c. 
16,)  s.  28,  post,  App.  See  also  8  &  9  Vict.  c.  113,  act  passed  to 
facilitate  the  admission  in  evidence  of  certain  official  and  other 
documents,  post,  App. 


358     Remedies  for  or  against  Railway  Companies. 

sary  that  it  should  be  kept  in  strict  conformity  with 
the  act,  the  provisions  as  to  the  details  to  be  in- 
cluded in  such  book  being  to  a  great  extent  merely 
directory ;  but  it  is  enough  if  it  be  kept  bond  fide 
with  the  intention  of  doing  what  the  act  directs,  and 
in  essentials  comply  with  its  directions,  {d)  Where 
therefore  an  act  directed  a  company  to  enter  and 
keep  in  their  register  book  the  names  and  additions 
of  the  shareholders,  with  the  number  of  shares  they 
were  respectively  entitled  to,  and  the  amount  of  sub- 
scriptions paid  thereon,  and  the  proper  number  by 
which  each  share  was  distinguished,  and  after  such 
entry  to  cause  their  common  seal  to  be  annexed 
thereto  ;  and  in  an  action  for  calls  a  book  kept  by  the 
company  was  produced,  (e)  containing  the  names  and 
additions  of  all  the  persons  whom  they  supposed  en- 
titled to  shares,  together  with  the  number  of  those 
shares  (though  not,  in  all  cases,  the  amount  of  sub- 
scriptions paid  thereon),  and  the  proper  number  by 
which  each  share  was  distinguished,  and  sealed  from 
time  to  time  with  the  common  seal  of  the  company, 
it  was  held  to  be  a  book  substantially  kept  in  com- 
pliance with  the  act  and  admissible  in  evidence, 
though  it  contained  entries  to  whicli  no  seal  had 
ever  been  affixed,  and  the  names  of  persons  not  enti- 
tled to  shares,  and  omitted  the  names  of  others  who 
were, 

(d)  Southampton  Dock  Company  v.  Richards,  1  M.  &  Gr. 
448  ;  The  London  Grand  Junction  Railway  Company  v.  Free- 
man, 2  Railw.  Cas.  468 ;  S.  C.  2  M.  &  Gr.  606 ;  Same  v. 
Graham,  1  A.  &  E.  N.  S,  271  ;  Same  v.  Gun  stone,  ibid.;  JBiV- 
■mingham,  Bristol  and  Thames  Junction  Railway  Company  v. 
Locke,  1  A.  &  E.  N.  S.  256. 

(e)  London  Grand  Junction  Railway  Company  v.  Freeman, 
ubi  supra. 


Remedies  for  Company  against  Shareholders.     359 

Where,  in  addition  to  other  requisites,  the  act 
prescribes  that  the  book  in  question  be  kept  by  the 
secretary  of  the  company,  it  is  not  meant  by  this 
that  he  is  to  make  every  entry  in  it,  but  simply  that 
it  should  be  under  his  care  and  control.  It  has  been 
held  enough,  therefore,  to  show  that  the  book  was 
kept  by  a  clerk,  who  acted  under  the  secretary  and 
made  entries  according  to  his  directions,  (y) 

490.  In  addition  to  the  register  book,  which  is  to 
contain  the  names  and  additions  of  the  shareholders, 
the  number  of  shares  they  are  respectively  entitled 
to,  &c.,  the  act  usually  prescribes  the  keeping  of 
another  book,  (g)  which  is  to  contain  the  names  and 
places  of  abode  of  the  proprietors  ;  it  is  the  former 
of  these  books  that  the  act  usually  makes  evidence(/«) 
of  the  proprietorship,  and  this  must  be  understood 
as  meant  by  the  act,  even  where  the  description  in 
part  applies  to  the  latter  book,  (h)  Sometimes,  how- 
ever, the  production  of  both  these  books  is  required 
by  the  act ;  and,  in  such  a  case,  both  must  accord- 
ingly be  produced  at  the  trial,  to  constitute  prima 
facie  evidence  of  the  proprietorship,  (i) 

491.  Although  the  register  book  is  prima  facie 
evidence  of  a  party's  proprietorship,  yet  it  is  only 
so  from  the  period  of  the  company's  seal  being  set 
to  the  entry  of  the  defendant's  name  therein,  this 

(f)  Southampton  Dock  Company  v.  Richards,  1  M.  &  Gr.  448. 

(g)  See  Companies  Clauses  Consolidation  Act,  (8  Vict.  c. 
16,)  s,  10,  post,  App.  See  also  8  &  9  Vict.  c.  113,  (act  to  faci- 
litate admission  in  evidence  of  certain  official  and  other  docu- 
ments,) post,  App. 

(h)  London  Grand  Junction  Railway  Company  v.  Freeman, 
ubi  supra. 

(0  London  and  Brighton  Railway  Company  v.  Fairclough, 
2  Railw.  Gas.  544 :  S.  C.  2  M.  &  Gr.  674. 


360     Remedies  for  or  against  Railway  Companies. 

being  the  mode  prescribed  by  the  act  for  the  au- 
thentication of  the  book  in  question.  Where  there- 
fore it  is  sought  to  fix  a  party  with  liability  for  calls 
accruing  prior  to  this  time,  some  other  evidence  of 
his  proprietorship  becomes  necessary,  (i)  And  the 
same  where  the  register  is  not  receivable  on  account 
of  substantial  error,  or  where  both  the  register  and 
other  book  above  alluded  to  are  required  to  be  pro- 
duced, and  only  one  is  put  in  evidence.  (Jc) 

Such  evidence,  in  the  case  of  an  original  propri- 
etor, would  usually  consist  of  proof  of  the  defend- 
ant's having  signed  the  subscription  deed ;  or  per- 
haps evidence  of  his  having  acted  as  a  proprietor  bj" 
payment  of  the  deposit  and  prior  calls,  attending 
meetings,  S;c.,  might  be  sufficient. (/)  In  the  case  of 
one  claiming  by  transfer,  the  usual  evidence  is  the 
deed  of  transfer  itself,  which  is  in  general  required  (7?0 
by  the  act  to  be  given  into  the  possession  of  the 
company,  and  the  transfer  book  of  the  company, 
containing  the  memorial  of  the  assignment. 

492.  The  transfer  or  memorial  book  is  per  se 
evidence  of  the  date  of  the  entry  of  the  transfer,  and 
this  without  proof  of  how  or  by  whom  it  was  made 
up,  or  at  what  time  the  entry  of  the  transfer  in 
question  was  written  therein.  (?i) 

493.  Although  no  memorial   of  the    transfer  be 

(i)  Cheltenham  Railway  Company  v.  Price,  9  C.  Sc  P.  58  : 
Aylesbury  Railway  Company  v.  Thompson,  2  Railw.  Cas.  674. 

(k)  See  ante,  359,  n.(0. 

{I)  See  Cromford  and  High  Peak  Railway  Company  v.  Lacey, 
3  Y.  &  .T.  80. 

(m)  See  Companies  Clauses  Consolidation  Act,  (8  Vict.  c. 
16,)  s.  15,  post,  App. 

(n)  Aylesbury  Railway  Company  v.  Thompson,  2  Railw.  Cas. 
676. 


Remedies  for  Company  against  Shareholders.  3G1 

entered  in  the  company's  books,  still  if  they  have 
possession  of  the  deed  there  is  nothing  to  prevent 
them  from  treating  the  defendant  as  proprietor  of 
the  share  under  the  legal  effect  of  the  deed,  the 
provision  as  to  the  memorializing  of  deeds  of  trans- 
fer being  intended  only  for  the  security  of  the  com- 
pany, and  not  to  effect  any  alteration  in  the  common 
law  operation  of  the  deed,  (n) 

494.  Next,  of  the  evidence  of  the  making  of  the 
calls,  (o)  According  to  the  usual  provisions  of  a 
railway  act,  this  consists  of  the  minute  book  of  the 
company,  containing  the  resolution  of  the  directors 
for  the  making  of  the  call.  It  is  usually  required  to 
be  signed  by  the  chairman  of  the  meeting  at  which 
the  calls  are  made,  by  way  of  authentication.  Where, 
on  the  production  of  the  book,  it  bears  a  signature, 
purporting  to  be  that  of  the  chairman,  the  signature 
must,  according  to  the  usual  provisions  of  a  railway 
act,  be  presumed  to  be  that  which  it  professes  to 
be,  without  further  proof  that  the  party  so  signing 
actually  presided  at  the  meeting,  or  signed  the 
book.  (2?)  If  the  signature  be  that  of  the  proper 
party,  it  makes  no  difference  that  it  appears  to  be, 
and,  in  point  of  fact  is,  appended,  not  at  the  parti- 
cular meeting  where  the  resolution  is  passed,  but  at 
a   subsequent    meeting,    at    which   the    same  party 

(71)  London  and  Brighton  Bailwdy  Company  v.  Fairclougit ,  2 
M.  &  Gr.  674;  S.  C.  2  Railw.  Cas.  558. 

(0)  See  Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16, 
s.  98,  post,  App. 

(p)  Sheffield,  Ashton-nnder-Lyne  and  Manchester  Railway 
Company  v.  Woodcock,  2  Railw.  Cas.  522 ;  S.  C.  7  M.  &  W. 
574. 


362     Remedies  for  or  against  Railway  Companies. 

presides,  (jf)  And  it  has  been  held  sufficient,  even 
though  the  party  by  the  form  of  his  signature  profess 
simply  to  confirm  the  minutes  in  question,  and  not 
to  sign  them  as  original  matter,  as  where  a  resolution, 
dated  August  18,  was  signed  "  confirmed  August  25, 
J.  L,  Chairman."  (r) 

495.  Where  a  shareholder  is  sued  for  calls,  he 
will  not  be  allowed  to  inspect  and  make  extracts 
from  the  minute  books  of  the  company,  at  least 
where  his  object  is  to  find  out  some  possible  de- 
fence, and  not  to  enable  himself  to  plead  properly  a 
particular  plea ;  and  this  although  the  company's 
act  gives  a  power  to  any  general  or  special  general 
meeting  of  the  company  to  call  for  and  inspect  all 
books,  &c.  of  the  company,  {s) 

496.  II.  Of  remedies  in  equity,  Where  the  di- 
rectors of  a  railway  company  are  guilty  of  any  frau- 
dulent or  improper  practice,  to  the  detriment  of  the 
general  interests  of  the  concern,  the  company  may, 
it  is  conceived,  file  a  bill  in  equity  for  relief,  (f) 

(q)  Southampton  Dock  Company  v.  Richards,  2  Railw.  Cas. 
216  ;  S.  C.  1  jNI.  &  Gr.  448;  West  London  Raittuay  Company 
V.  Bernard,  22  Law  Journ.  Q.  B.  68  ;  S.  C.  3  A.  &  E.  N.  S. 
876  ;  London  and  Brighton  liailway  Company  v.  Fairclough,  2 
M.  &  Gr.  674. 

(^r)    West  London  Railway  Company  v.  Bernard,  ubi  supra. 

(s)  The  Birmingham,  Bristol,  and  Thames  Jimction  Railway 
Company  v.  White,  2  Railw.  Cas.  863  ;  S.  C.  1  A.  &  E.  N.  S. 
282. 

(«)  Attorney-General  V.  Wilson,  Cr.  &  Ph.  1.  See  Society  of 
Practical  Knowledge  v.  Abbott,  2  Beav.  559.  Where  third  par- 
ties are  implicated  in  the  misconduct  of  the  directors,  as  to  how 
far  ihey  may  properly  be  made  defendants  to  the  suit  by  the 
company,  see  Lund  v.  Blanshard,  4  Hare,  9. 


Remedies  for  Company  against  Strangers.     363 

Sect.  2. —  Of  Remedies  for  the  Company  against 
Strangers. 

I. — At  Law. 
II. — In  Equity. 
III. — Of  Criminal  Remedies. 


I.  Of  Remedies  at  Law. 

497.  I.  By  action.  A  railway  company  has  the 
like  remedies  at  common  law  for  injuries  to  its  pro- 
perty, or  for  the  non-performance  of  contracts  con- 
cluded with  it,  that  any  ordinary  person  has.  For 
a  trespass  therefore  on  the  line  of  railway,  it  may 
maintain  an  action  of  trespass  as  any  other  per- 
son. (t<) 

The  act  usually  provides  what  shall  be  good  ser- 
vice of  process  by  the  company,  viz.,  either  personal 
service  thereof,  or  a  delivery  of  the  same  to  some 
inmate  at  the  last  or  usual  place  of  abode  of  the 
other  party. 

In  case  of  legal  proceedings  being  taken  by  the 
company  for  any  injury  to  personal  property  either 
belonging  to  or  deposited  with  the  company,  whe- 
ther by  way  of  destruction,  damage,  conversion,  or 
the  like,  the  act  usually  provides  that  it  shall  be 
sufficient  for  the  company  to  describe  such  property 
as  the  property  of  the  company,  and  as  taken,  &c. 
from  them,  and  to  show  at  the  trial  their  possession 
of  the  article,  either  actual  or  constructive,  without 
giving  any  other  proof  of  title. 

(■u)  Grand  Junction  Uaiiwai)  Company  v.  Wliite,  2  Raihv. 
Cas.  559;  S.  C.  8  M.  &  W.2I4. 


364      Remedies  for  or  against  Railway  Companies, 

498.  2.  By  certiorari,  and  generally  by  way  of 
summary  application.  This  species  of  remedy  it 
may  be  open  to  the  company  to  adopt  under  various 
circumstances  ;  one  however  of  the  most  usual  cases 
is  where  a  fatal  accident  occurs  on  the  railway,  and 
the  jury  on  the  inquisition  before  the  coroner  im- 
pose a  deodand  on  the  company,  of  which  the  latter 
seek  to  get  rid.  In  such  case,  if  the  inquisition  be 
defective,  so  that  no  judgment  can  be  given  upon 
it,  the  company,  after  i-emoving  the  record  by  cer- 
tiorari, may  move  the  court  to  quash  it.  To  ground 
such  a  motion  as  this,  however,  the  defects  must  be 
palpable  and  material  defects ;  as,  for  instance, 
where  the  inquisition  on  the  face  of  it  discloses  a 
want  of  jurisdiction,  (a:)  or  omits  to  state  what  is 
essential  to  be  stated  in  order  to  originate  the  juris- 
diction of  the  coroner,  [y)  or  gives  an  insufficient 
description  of  the  cause  of  death,  [z)  or  finds  as 
deodand  what  is  not  properly  subject  of  deodand, 
or  misdescribes  the  owners,  (a)  as  where  an  inquest 
described  the  engine  and  carriage  moving  to  the 
death  as  the  goods  and  chattels  and  in  the  posses- 
sion of  ''  the  proprietors  of  the  Hull  and  .Selby 
Railway,  Src."  that  not  being  their  name  of  incor- 
poration, (fl) 

(i)  See  Heg.  v.  Great  Western  Railuay  Company,  3  A.  &  E. 
N.  S.  333  ;  but  see  6  6c  7  Vict.  c.  12,  and  ib.  c.  83. 

(y)  Rex  V.  Evett,  6  B.  &  C.  247. 

(s)  Reg.  V.  Stockdale  and  Darlington  Railway  Company,  8 
Dowl.  P.  C.  516. 

(a)  Reg.  V.  West,  2  Railw.  Cas.  613  ;  S.C.  I  A.&i  E.  N.  S. 
826.  Inquest  quashed  for  finding  that  death  caused  by  felonious 
act,  and  imposing  a  deodand  on  the  instrument  of  death  ;  Reg. 
V.  London  and  Birmingham  Railway  Company,  2nd  June,  1841. 
So  for  finding  that  which  moved  to  the  death  to  be  the  property 


Remedies  for  Compamj  against  Strangers.     S&5 

499.  Where  several  persons  meet  their  death  by 
the  same  engine,  &c.,  and  at  the  same  time,  the 
engine,  it  should  seem,  can  only  be  forfeited  once 
for  all.  Therefore  if  several  inquisitions  are  taken, 
each  making  the  engine  a  deodand,  the  company,  it 
should  seem,  may  traverse  or  perhaps  may  move  to 
quash  the  proceedings.  But  they  cannot,  where  the 
deodands  have  been  estreated  into  the  court  of  ex- 
chequer, procure  a  stay  of  proceedings  on  all  the 
inquisitions  but  one,  on  payment  of  the  deodand 
found  by  that  one,  the  day  of  the  death  being  no 
essential  part  of  the  finding,  and  therefore  the  ob- 
jection not  appearing  on  the  face  of  the  record,  (i) 

500.  A  coroner's  inquest  may  be  quashed  in  part, 

of  A.  B.  and  others  ;  Tieg.  v.  Newcastle  and  Darlington  Railway 
Company,  1845.  In  this  case  there  were  two  additional  grounds 
of  objection,  viz.  that  the  inquest  did  not  show  how  the  deceased 
came  by  his  death,  or  that  he  died  of  the  wound  which  he  re- 
ceived. The  inquest  may  also  be  quashed  for  the  misconduct  of 
the  coroner  or  the  jury  ;  Jervis  on  Coroners,  287.  Inquest 
quashed  (jimong  other  grounds)  on  the  ground  that,  after  the 
verdict  was  recorded  and  the  jury  discharged,  the  coroner  re- 
assembled them  for  the  purpose  of  inserting  in  the  inquisition  the 
value  of  the  instrument  moving  to  the  death  ;  Reg.  v.  York  and 
Noi'th  Midland  Bailivay  Company,  1841.  But  it  is  no  objec- 
tion 10  an  inquisition  that  it  is  held  before  the  coroner's  deputy, 
the  coroner  being  engaged  in  holding  an  inquisition  in  another 
place  ;  and  where  it  is  well  commenced  in  his  absence  from  such 
cause,  his  accidental  presence  during  a  part  of  the  inquiry  can 
make  no  difference,  but  the  deputy  may  continue  it  to  the  end. 
The  conclusion  of  the  inquisition  was  as  follows:  "  In  witness, 
&c.  A.  B.  coroner,  by  C.  D.  his  deputy,"  it  was  held  an  unob- 
jectionable, if  not  the  most  correct  mode  of  signature  ;  Reg,  v- 
Perkins,  9  Jur.  686. 

(6)  Reg,  v.  Eastern  Counties  Railway  Companit,  lOM.  &  W. 
58  ;  S.  C.  3  Railw.  Cas.  145. 


366     Remedies  for  or  against  Railway  Companies. 

and  stand  good  for  the  remainder.  Thus  where  a 
coroner's  jury  found  a  verdict  of  manslaughter,  and 
laid  a  deodand  on  the  instrument  of  death,  the  court 
on  motion  quashed  the  inquisition  so  far  as  regarded 
the  finding  of  the  deodand.  (c) 

501.  Although  a  court  will  sometimes  quash  an 
inquisition  on  motion  for  defects  of  the  above  de- 
scription, yet  the  general  inclination  of  the  court  is 
to  leave  the  party  contesting  it  to  his  remedy  by 
traversing  or  demurring,  (d)  A  coroner's  (e)  inqui- 
sition stated  as  the  cause  of  death  the  company's 
improperly,  &c.  causing  and  permitting  the  use  of 
two  engines,  owing  to  which  the  engines  were  pro- 
pelled against  each  other,  and  a  party  riding  on  one 
was  killed,  and  found  the  engine  to  be  moving  to  the 
death.  &c. ;  the  court  refused  to  quash  the  inqui- 
sition on  motion,  {e) 

II.   Of  Remedies  in  Equity. 

502.  A  railway  company  is  in  general  entitled  to 
the  like  remedies  in  equity  as  an  ordinary  person, 
for  the  protection  of  its  property,  or  in  regard  of 
contracts  concluded  with  it.  Where  therefore  a 
railway  company  contract  for  the  purchase  or  taking 
of  land,  they  may  go  into  equity  to  have  a  specific 
performance  of  that  contract  decreed  against  the 
opposite  party.  (/) 

503.  So  likewise  a  railway  company  may  file  a 
bill  in  equity  to  be  relieved  against  any  fraudulent, 

(c)  Reg.y.  Polworth,  9  Dowl.  P.  C.  1048. 

(d)  Reg.  V.  Brownlmc,  1 1  A.  &  E.  119. 

(e)  Reg,  V.  Grand  Junction  Railway  Company,  11  A.  6c  £. 
128,  n.  (a). 

(/)  See  ante,  p.  138. 


Remedies  for  Company  against  Strangers.     367 

oppressive  or  unfair  dealing,  on  the  part  of  a  third 
party.  So  likewise  a  court  of  equity  will  restrain  a 
party  by  injunction  from  doing  what  is  calculated 
materially  to  interfere  with  the  construction  of  the 
railway  ;  or  seriously  to  obstruct  it  when  made,  or 
the  works  belonging  to  it ;  as  for  instance,  from 
taking  up  the  rails  on  a  part  of  the  line,  erecting  a 
fence  across  the  line,  or  the  like,  (g)  This  of 
course  supposes  that  the  company  are  proceeding 
in  a  course  authorized  by  law,  for  where  they  go 
beyond  the  limits  of  their  powers,  or  act  contrary 
to  or  in  defiance  of  another's  legal  rights,  they 
cannot  of  course  call  for  the  protection  of  a  court  of 
equity.  (Ji) 

504.  So  likewise  in  the  case  of  an  attempted 
illegal  interference  by  one  company  with  the  traffic 
of  another,  it  may  be  to  acquire  for  the  former  the 
whole  of  such  traffic,  or  to  divide  it  between  the 
companies  in  a  greater  or  less  proportion,  a  court 
of  equity  will  exercise  its  jurisdiction  to  grant  an 

{g)  ^ee  London  and  Birmingham  Raikvay  Company  v.  Grand 
Junction  Canal  Company,  1  Railvv.  Cas.  224 ;  London  and 
Brighton  Railway  Company  v.  Blake,  2  Railw.  Cas.  322.  So 
where  one  railway  company  has  a  right  at  law  to  the  temporary 
use  of  the  land  of  another  company,  by  way  of  easement,  for  a 
purpose  necessary  to  the  construction  of  their  line,  such,  for  in- 
stance, as  carrying  a  bridge  over  the  line  of  the  latter  company, 
on  a  motion  for  an  injunction  by  the  former  company  to  restrain 
the  obstruction  of  their  works,  a  court  of  equity,  it  seems,  has 
jurisdiction  to  award  and  secure  to  them  possession  of  such 
temporary  easement;  Great  North  of  England,  8)C.  Railway 
Company  v.  Clarence  Railway  Company,  1  Coll.  517. 

(/i)  London  and  Brighton  Railway  Company  v.  Cooper,  2 
Railw.  Cas.  312  ;  see  also  Durham  and  Sunderland  Railway 
Company  v.  IVawn,  ib.  395  ;  S.  C.  3  Beav.  119. 


36s     Remedies  for  or  against  Raibvay  Companies. 

injunction,  either  bj^  order  upon  motion,  if  the  mis- 
chief threatened  is  irreparable,  or  at  any  rate  by 
decree,  the  case  being  one  where  damages  would 
be  an  inadequate  remedy,  and  the  protection  of  the 
right  in  specie  is  the  only  way  of  doing  complete 
justice,  (i)  The  plaintiffs  moved  for  an  injunction 
to  restrain  the  defendants  from  using  in  a  manner 
alleged  to  be  illegal,  and  calculated  to  interfere  with 
the  plaintiff's  traffic,  a  communication  (by  branch 
rails)  with  plaintiff's  railway :  and  also  from  using 
certain  other  rails,  which  connected  a  certain  other 
railway  with  a  station  of  the  defendants ;  and  also 
from  using  in  like  manner  such  station  itself.  The 
court  refused  to  interfere  by  injunction  in  that  stage 
of  the  proceedings,  but  left  the  parties  to  their  legal 
remedies  in  the  first  instance,  the  plaintiffs  having 
failed  to  show  that,  by  using  the  communication, 
rails,  or  station,  in  the  manner  complained  of,  any 
destruction  or  irreparable  injury  would  result. 
The  Vice-Chancellor  there  lays  it  down  in  the  course 
of  his  judgment,  that,  in  cases  of  trespass  under 
colour  of  title,  where  the  mischief  ajiprehended  is 
irreparable,  a  court  of  equity  will  exercise  its  juris- 
diction to  grant  an  injunction,  and,  whether  the  mis- 
chief be  irreparable  or  not,  it  will  by  decree,  if  not 
by  order  upon  motion,  extend  the  jurisdiction  of 
preventive  justice  to  all  cases  of  trespass,  in  which 
damages  would  be  an  inadequate  and  uncertain 
remedy,  and  the  protection  of  the  right  in  specie  is 
the  only  mode  of  doing  complete  justice,  (i) 

.505.  Where  in  a  suit  of  this  kind,  the  question  of 

(i)  North    Union   Railway   Compani/  v.    Bolton  and  Preston 
Railivay  Company,  3  Railw.  Cas.  348. 


Remedies  for  Company  against  Strangers.     369 

right  is  a  doubtful  one,  and  such  as  is  proper  to  be 
submitted  to  a  court  of  law,  a  court  of  equity,  while 
it  puts  the  case  in  proper  train  for  being  tried  by  a 
court  of  law,  at  the  same  time  takes  into  account  the 
balance  of  inconvenience,  and  as  this  preponderates 
on  the  one  side  or  the  other,  grants,  continues  or 
dissolves  either  wholly  or  in  part  the  injunction 
prayed  by  the  company,  so  as  best  to  reconcile  in  the 
interim  the  interests  of  the  contending  parties,  {k) 

III.   Of  Criminal  Remedies.  (Jt) 

.506.  If  a  party  is  guilty  of  a  tort  to  property  on 
a  line  of  railway,  whereby  the  public  safety  is  en- 
dangered, he  is,  it  seems,  liable  to  be  indicted  for 
the  same.  Thus  a  party  has  been  indicted  for  setting 
a  steam  engine  going  on  a  railway  by  turning  on  the 
steam,    and   thereby  endangering   the   lives  of  her 

(A.)  Clarence  Railway  Compa7iy  v.  Great  North  of  England, 
Clarence,  and  Hartlepool  Junction  Eaiiway  Company,  2  Railw. 
Cas.  763  :  S.  C.  6  Jur.  269  ;  Great  North  of  England.  Clarence, 
^nd  Hartlepool  Junction  Railtvay  Company  v.  Clarence  Railway 
Company,  1  Coll.  507  ;  see  also  North  Union  Railway  Company 
V.  Bolton  and  Preston  Junction  Railway  Company,  3  Railw, 
Cas.  34r,. 

(/)  As  to  criminal  remedy  for  wilful  obstruction  of  railway, 
Sec,  see  ante,  p.  344  ;  also  as  to  remedies  by  way  of  summary 
application  to  justices  of  peace,  &c.  in  cases  of  misconduct 
of  servants,  &c.,  wilful  trespasses  on  the  railway,  &c.,  see  ante, 
p.  342,  et  seq.  Also  as  to  penalty  under  Railways  Clauses 
Consolidation  Act,  (8  Vict.  c.  20,)  for  obstructing  parties  law- 
fully engaged  under  company's  authority  in  setting  out  line  of 
railway,  see  act,  s.  24,  post,  App. ;  and  as  to  remedy  against 
passengers  practising  frauds  on  company  under  same  act,  and 
power  of  apprehending  parties  so  offending,  see  ib.  ss.  103,  104, 
post,  App. 


370     Remedies  for  or  against  Railway  Companies. 

majesty's  subjects,  (m)  And  if  a  party  out  hunting 
wrench  off  the  locks  of  gates  that  secure  the  rail- 
way, and  then  ride  on  after  the  hounds,  leaving  the 
gates  open,  semble,  he  would  be  indictable  for  the 
wilfully  leaving  the  gates  open,  and  exposing  the 
traffic  on  the  line  to  interference  and  danger,  (m) 


Sect.  Ill, — 0/  Remedies  for  Individual  Members  of 
a  Company  against  the  Company. 

I.  At  Law. 
II.   In  Equity. 

I.  Of  Remedies  at  Law. 

507.  1.  By  action.  In  general  a  member  of  a 
company  can  have  no  ground  of  action  against  the 
company.  But  where  the  act  constituting  the  com- 
pany declares,  as  it  usually  does,  that  the  first  monies 
received  under  the  act  shall  be  applied  in  discharge 
of  the  expenses  incurred  in  obtaining  the  act,  it 
should  seem  that  a  member,  who  has  expended  his 
time,  labour  or  money  in  obtaining  the  act,  may 
maintain  an  action  against  the  company  for  the  fair 
value  thereof,  though  in  such  case  he  should  it 
seems   be  prepared   to   fix  the  company  with   the 

(w)  Beg.  V.  Thoroughgood,  Chelmsford  Quarter  Sessions, 
1842. 

(n)  In  Reg.  v.  Elmore,  Middlesex  Sessions,  party  indicted  on 
above  ground,  under  Great  Western  Railway  Act;  by  consent 
defendant  pleaded  guilty  to  one  count,  and  fined  one  shilling  and 
discharged. 


Remedies  for  Shareholders  against  Company.     371 

receipt  of  monies  under  the  act  suflRcient  to  satisfy 
his  claim,  (n) 

508.  2.  By  mandamus.  Where  a  railway  company 
refuse  to  do  any  thing  prescribed  by  their  act,  a 
shareholder,  who  is  prejudiced  by  such  refusal,  may 
it  seems  apply  for  a  mandamus  against  the  company 
to  compel  them  to  do  it.  (o) 

II.   Of  Remedies  in  Equity. 

509.  If  a  railway  company  violate  their  constitu- 
tion by  seeking  to  do  what  they  are  not  authorized 
by  their  act  to  do,  or  if  they  are  otherwise  guilty  of 
a  breach  of  the  duties  which  they  owe  as  a  company 
to  the  individual  members,  an  individual  member 
may  it  seems  institute  a  suit  in  equity  against  the 
company,  to  restrain  them  from  so  proceeding.  So 
if  the  company  are  guilty  of  fraud,  oppression,  &c. 
against  one  or  more  particular  members,  relief  may 
be  had  against  thein  in  equity,  on  the  application  of 
the  injured  party,  (^j) 

510.  A  court  of  equity  therefore  will,  at  the 
instance  of  a  shareholder,  restrain  a  railway  com- 
pany from  applying  its  corporate  funds  and  credit 

(m)  Garden  v.  The  General  Cemetery  Company,  5  Bing.  N.  C. 
253 ;   Tilion  v.  Warivick  Gas  Light  Company,  4  B,  &  C.  962. 

(o)  Reg.  V.  Eastern  Counties  Railiuay  Company,  1  Railw. 
Cas.  509 ;  S.  C.  2  Railw.  Cas.  260  ;  S.  C.  10  A.^&  E.  531. 

(p)  In  Pearson  v.  London  and  Croydon  Railway  Company,  9 
Jur.  341,  a  bill  was  filed  by  the  plaintiff",  a  shareholder  in  the 
company,  to  have  a  transfer  of  his  proportionate  number  of 
certain  new  shares  issued  in  pursuance  of  the  lesolutions  of  a 
general  meeting  ;  plaintiff"  held,  on  construction  of  resolutions,  to 
have  been  too  late  in  his  application  for  the  shares,  and  demurrer 
to  bill  for  want  of  equity  allowed. 


"72     Remedies  for  or  against  Railway  Companies. 

to  purposes  not  sanctioned  by  the  act  of  incorpora- 
tion, (q) 

511.  So  if  the  directors  of  a  company  were  to 
make  calls  upon  some  of  the  shareholders  and  not 
upon  othei's,  where  the  act  constituting  the  company 
contemplated  all  the  shareholders  paying  rateably, 
a.  court  of  equity  would,  it  seems,  interfere  to  rectify 
the  error,  and  put  all  the  shareholders  on  an  equal 
footing :  (r)  and  until  this  were  done  it  would  like- 
wise, it  seems,  in  such  a  case  restrain  the  directors 
from  taking  any  steps  to  declare  a  party's  share 
forfeited  for  the  non-payment  of  calls  made  in  such 
direct  contravention  of  the  intentions  of  the  legis- 
lature, (r) 

.512.  A  shareholder,  who  has  an  equity  to  be  pro- 
tected from  the  payment  of  a  call,  if  called  on  to 
pay,  may  apply  to  a  court  of  equity  for  relief,  (s) 
As  for  instance,  where  the  undertaking  from  subse- 
quent circumstances  becomes  impossible  of  execu- 
tion, or  the  complainant  is  entrapped  into  becoming 

((/)  Wate  V.  Grand  Junction  Water  Works  Company,  2  Rus. 
&  M.  470.  And  in  Ward  v.  Society  of  Attomies,  1  Coll.  370, 
on  a  motion  made  on  behalf  of  the  minority  for  an  injunction  to 
restrain  the  majority  of  the  members  of  a  corporation  from  sur- 
rendering their  charter,  with  a  view  to  obtain  a  new  charter  for 
an  object  different  from  that  for  which  the  original  charter  was 
granted,  the  court  granted  the  injunction  until  the  hearing. 

(r)  Judgment  of  A^ice-Chancellor  in  Preston  v.  Grand  Collier 
Dock  Company,  2  Railw.  Cas.  358;  S.  C.  11  Sim.  327.  That 
illegal  forfeiture  of  shares  ground  for  relief  in  equity,  see  Jones 
V.  Rose,  4  Hare,  52. 

(s)  Where  an  injunction  is  prayed  to  restrain  company  from 
proceeding  with  action  at  law,  the  party  must  apply  within  proper 
time  after  the  bringing  of  the  action.  See  Thorpe  v.  Hughes,  3 
-Mv.  &  Cr.  742. 


Remedies  for  Shareholders  against  Company.   373 

a  shareholder  by  the  fraud  of  the  company,  or  the 
particular  call  is  fraudulently  made,  (j.)  The  mere 
fact  of  the  invalidity  of  the  appointment  of  ihe  di- 
rectors, or  of  a  party  having  taken  the  shares,  in 
respect  of  which  it  is  sought  to  make  him  liable,  for 
the  accommodation  of  the  company,  is  per  se  no 
ground  for  such  relief,  (ij)  Even  where  the  com- 
pany subsequently  take  steps  in  order  to  relieve  the 
party  from  the  liability,  to  which  he  has  thus  sub- 
jected himself  for  the  company's  benefit,  it  would 
seem  questionable  whether  such  steps  can  be  taken 
to  have  the  effect  intended  them  ;  unless  indeed 
they  strictly  follow  the  forms  prescribed  by  the  act 
for  the  purpose,  (m)  Neither  can  a  party  in  general 
be  heard  to  allege  the  nature  of  the  undertaking  as 
a  ground  for  relief,  as  for  instance,  that  the  greater 
part  of  the  subscriptions  are  fictitious,  being  made 
in  trust  for  the  company,  and  for  the  purpose  of 
satisfying  the  standing  orders  of  the  Iiouses  of  par- 
liament, and  thereby  enabling  the  subscribers  to  get 
their  act  of  parliament,  it  being  the  province  of  the 

(t)  See  judgment  of  Vice-Cliancellor  in  Mangles  v.  Grand 
Collier  Dock  Company,  10  Sim.  519  ;  Richardson  v.  Larpent,  2 
Y.  &  Coll.  N.  C.  507  ;   Thorpe  v.  Hughes,  3  My.  &  Cr.  742. 

(it)  Mangles  v.  Grand  Collier  Dock  Company,  ubi  supra ; 
Playfair  v.  Birmingham,  Bristol  and  Thmnes  Junction  Railway 
Company,  1  Railw.  Cas.  640.  Where  four  directors  conducted 
the  business  of  a  joint  stock  company  for  a  considerable  time, 
and  had  various  dealings  with  a  third  party  as  agent  of  the  com- 
pany, it  was  held  that  it  was  not  competent  to  such  third  party 
to  object,  in  a  suit  against  him,  that  the  four  directors  did  not 
sufficiently  represent  the  company,  notwithstanding  the  deed  of 
association  of  the  company  provided  that  the  business  of  the 
company  should  be  transacted  by  six  directors;  Bensonw.  Hadfield, 
4  Hare,  32. 


374     Remedies  for  or  against  Railway  Coinpanies. 

legislature  to  judge  of  the  policy  and  fairness  of  the 
scheme,  &c.,  and  consequently  if  they  are  satisfied 
on  this  head,  it  is  hardly  competent  for  any  other 
jurisdiction  to  say  that  the  scheme  is  nevertheless  ab 
initio  a  fraud  and  a  nullity,  {x) 

513.  In  cases  of  the  above  kind,  where  the  plain- 
tiff alleges  an  equity,  in  order  to  interfere  with  an 
admitted  legal  right,  it  requires  a  very  strong  case 
indeed  for  the  court  of  equity  to  stop  the  action  by 
injunction.  It  can  only  indeed  be  where  the  court 
clearly  sees  that  upon  the  suit  coming  on  for  hear- 
ing, the  relief  sought  by  the  bill  must  be  decreed,  (z/) 
Where  the  equity  is  not  thus  clear,  the  usual  course 
is  for  the  court  to  give  the  plaintiff  the  opportunity, 
if  he  so  elects,  of  giving  judgment  in  the  action  at 
law,  and  paying  the  money  into  court ;  or  if  he  is 
unwilling  to  consent  to  this,  to  let  the  trial  go  on, 
•with  liberty  to  apply  after  verdict,  (z) 

514.  Next  as  to  the  proper  persons  to  be  made 
parties  to  the  suit.  Where  a  single  shareholder  as 
such  has  an  interest  in  a  particular  subject  adverse 
to  that  of  the  company,  and  seeks  relief  on  that 
score,  he  may  file  a  bill  in  his  own  right  against  the 
company.  But  if  several  have  a  common  interest  in 
the  relief  sought  by  the  suit,  all  it  seems  ought  to 
be  made  parties,  (a)  If  the  parties  thus  interested 
are  too  numerous  to  be  made  parties  to  the  suit, 

(x)  See  ante,  p.  38  et  seq. 

(i/)  Playfair  v.  Birmingham,  Bristol  and  Thames  Junction 
Railway  Company,  1  Railw.  Cas.  640. 

(s)  Ibid. 

(a)  Semble,  if  a  shareholder,  after  parting  with  his  shares  in  a 
railway  company,  files  a  bill  for  relief  in  a  matter  touching  those 
shares,  the  transferee  ought  to  be  made  a  party ;  see  Mangles  v. 
Grand  Collier  Dock  Company,  10  Sim.  519 ;  S.  C.  2  Railw. 
Cas.  359. 


Remedies  for  Shareholders  against  Companij.    olo 

then  some  one  or  more  may  it  seems  file  a  bill  in  his 
or  their  own  names  for  the  benefit  of  all.  (h)  If  the 
suit  be  substantially  a  suit  for  the  general  weal  of 
the  main  body  of  the  shareholders,  it  would  seem  to 
form  no  objection  to  a  party  suing  in  his  own  name 
on  behalf  of  those  others,  that  he  has  a  particular 
interest  beyond  that  of  the  body  he  represents  in 
a  portion  of  the  relief  sought  by  the  bill.  A  party 
filed  a  bill  on  behalf  of  himself  and  the  general  body 
of  the  shareholders,  except  those  made  defendants, 
(viz.  the  directors  and  subscribers  for  the  shares 
hereinafter  alluded  to,  &-c.)  praying  that  the  direc- 
tors might  be  decreed  to  enforce  the  payment  of 
calls  in  respect  of  certain  shares,  originally  taken  for 
the  accommodation  of  the  company,  and  might  also 
be  restrained  from  declaring  the  plaintiff's  shares 
forfeited,  &c.  It  was  held  that  the  bill  could  not 
have  been  constituted  otherwise  than  as  it  was  by 
the  plaintiff  on  behalf  of  himself  and  all  the  other 
members,  except  the  defendants,  though  some  of 
those   others  had  been  present  and  voted  at   the 

(h)  Preston  v.  The  Grand  Collier  Dock  Company,  2  Railw. 
Cas.  335;  S.C.  11  Sim.  327.  See  also  Richardson\.  Hastings, 
22  Law  Journ.  Ch.  142  ;  S.C.I  Beav.  323 ;  Walluwrth  v.  Holt, 
4  Myl.  &  Cr.  619;  Lund  v.  Blanshard,  4  Hare,  9;  Jones  v. 
Rose,  ibid.  52.  There  a-  bill  filed  by  several  members  of  a  joint 
stock  company  on  behalf  of  themselves  and  all  the  other  share- 
holders, except  the  defendants,  was  allowed  to  be  amended  by 
striking  out  "  on  behalf  of  themselves  and  all  the  other  share- 
holders," &c.,  and  making  it  the  bill  of  the  plaintiffs  on  the 
record  only.  As  to  effect  of  common  injunction  to  stay  pro- 
ceedings at  law,  in  case  of  a  suit  so  framed,  and  when  benefit  of 
inj unction  extended  to  the  other  shareholders  not  individually 
named  on  the  record,  and  what  apphcation  necessary  for  that 
purpose,  &c.,  see  Lund  v.  Blanshard,  4  Hare,  290. 


.370     Remedies  for  or  against  Railway  Cortipanies. 

meeting  of  the  company,  which  sanctioned  the  sub- 
scribers for  the  shares  in  question  being  relieved 
from  payment  of  calls,  (c) 

.51.5.  We  are  here  supposing  tlie  case  of  a  suit 
brought  l)y  one  or  more  shareholders  against  the 
company,  or,  in  other  words,  a  case  where  the  relief 
sought  by  the  bill  affects  the  general  interests  of 
the  entire  body.  If  there  are  at  the  same  time  par- 
ticular members,  who,  either  from  the  relation  that 
they  bear  to  the  company,  or  from  some  interest 
that  tliey  have  in  common,  opposite  to  that  of  the 
plaintiHor  plaintiffs,  are  in  a  peculiar  manner  liable 
to  be  adversely  affected  by  the  suit,  those  parties 
ought,  it  seems,  to  be  joined  as  co-defendants,  [d) 
And  generally  it  would  seem  to  be  necessary  for  a 
plaintiff  to  join  as  co-defendants  with  the  company 
some  one  or  more  of  its  officers  or  of  the  other 
parties  principally  concerned  in  the  management  of 
its  concerns,  when  he  seeks  for  a  discovery  against 
the  company,  (e) 

516.  Of  the  framing  of  the  bill.  A  plaintiff  must 
take  care  to  rest  his  claim  to  relief  on  the  proper 
grounds,  as  he  cannot  have  a  relief  different  from 
the  case  made  out  by  the  bill,  and  he  must  state 
those  grounds  with  sufficient  clearness  and  parti- 
cularity. 

Where  a  party  files  a  bill  on  his  own  account  and 

(e)  Preston  v.  Grand  Collier  Dock  Company,  ubi  supra. 

(d)  Richardion  v.  Larpent,  2  Y.  &  Coll.  N.C.  507  ;  Preslon 
V.  Grand  Collier  Dock  Company,  ubi  supra  ;  Lund  v.  Blanfhard, 
4  Hare,  9. 

(i-)  As  to  joinder  of  officers  and  members  of  a  corporation  as 
co-defendants  with  corporate  body,  see  Glasscott  v.  Copper 
Milters'  Company,  11  Sim.  305,  and  cases  there  cited. 


Remedies  for  Shareholders  against  Company.     'i77 

that  of  the  general  body  of  the  shareholders,  he 
ought,  it  seems,  to  allege  therein  that  the  number, 
&c.  of  the  shareholders  is  such  as  renders  it  im- 
practicable to  make  them  all  parties.  {/) 


Sect.  4. — Of  Remedies  for  Strangers  against  Railway 
Companies. 

I.  At  Common  Law. 
II.  In  Equity. 
III.  Criminal  Remedies. 

I.  Remedies  at  Common  Law. 

1.  By  Action. 

2.  By  Mandamus. 

3.  By  Certiorari. 

.517.  Of  Remedies  by  Action.  Under  this  head 
it  is  proper  to  treat  of  the  four  following  points, 
1st,  where  an  action  in  general  lies  against  a  railway 
company  ;  2ndly,  of  the  protection  usually  given  by 
the  act  in  respect  of  a  particular  class  of  acts  ;  3dly, 
of  the  process  ;  and  4thly,  of  the  pleadings. 

518.  1st,  as  a  general  rule,  an  action  is  the  proper 
remedy  against  a  railway  company  for  any  act  done 
by  the  company  to  the  prejudice  of  another,  other- 
wise than  in  the  execution  of  their  statutory  powers, 
or  for  which  the  compensation  clause  of  the  com- 
pany's act  makes  no  provision,  (g") 

(_/')  See  Preston  v.  Grand  Collier  Dock  Company,  ubi  supra. 

(g-)  See  Turner  v.  Sheffield  and  Rnlherham  Railway  Company, 
10  M.  &  W.  425  When  assumpsit  for  money  had  and  received 
held  to  lie  against  railway  company,  see  Parker  v.  Great  Western 
Railway  Company,  22  Law  Journ.  C.  P.  105;  S.  C.  7  Scott's 
N.  R.  835 ;  company  liable  to  action  for  penalty  though  power 
given  to  recover  same  before  two  justices  ;  Collinson  v.  Newcastle 


378     Remedies  for  or  against  Railway  Companies. 

519.  2ndly.  Of  the  frotection  usually  accorded  by 
a  railway  act  to  the  company  in  respect  of  a  imrti- 
cular  class  of  acts.  It  may  be  proper  here  to  pre- 
mise that  though  the  clause  giving  the  protection 
makes  no  express  mention  of  the  company,  but  uses 
the  terms  person  and  defendant  in  describing  those 
it  is  intended  to  comprehend,  this  must  nevertheless 
be  taken  to  include  the  company ;  and  this  notvpith- 
standing  in  other  parts  of  the  act  the  word  person 
cannot  be  construed  to  include  the  company,  as 
where  it  is  put  in  opposition  to  the  word  company, 
or  is  expressly  confined  to  the  directors.  To  hold, 
otherwise  indeed  would  be  to  defeat  the  obvious  in- 
tention of  the  legislature  in  inserting  such  a  clause, 
by  excluding  from  its  protection  the  class  of  defend- 
ants most  in  need  of  it.  (Ji) 

520.  To  return  then  to  the  consideration  of  the 
class  of  acts  protected  by  the  act,  these  are  in  ge- 
neral acts  done  or  omitted  to  he  done  in  pursuance 
of  the  act.  By  the  latter  branch  of  the  above  exemp- 
tion would  seem  to  be  meant  all  omissions  of  any 
duty  imposed  upon  the  company  by  their  act ;  such 
for  instance  as  a  neglect  by  the  company,  as  pro- 
prietors of  the  railway,  to  repair  or  fence  it,  in  con- 
sequence of  which  the  travelling  along  it  is  rendered 
dangerous  to  the  public ;    assuming,  that  is  to  say, 

and  Darlington  Railway  Company,  1  C.  &  Kirw.  546;  action 
held  to  lie  on  bond  against  company,  though  holders  of  bonds 
entitled  by  act  to  lien  on  tolls,  6*0.  of  company  without  prefer- 
ence by  reason  of  priority  of  security,  &c.  and  although  other 
bonds  unsatisfied,  the  lien  being  only  an  additional  security  ;  Hill 
V.  Manchester  and  Salford  Water  Works  Company,  2  B.  6c  Ad. 
544. 

(fe)  Boyd  V.  Croydon  Railway  Company,  4  Bing.  N.  C.  669. 


Remedies  for  Strangers  against  Railway  Comps.  379 

such  an  obligation  to  be  either  expressly  or  impliedly 
cast  upon  the  company  by  their  act.  Hence  it 
would  seem  to  follow  that  where  it  is  sought  to 
charge  the  company  with  misconduct  as  carriers, 
and  not  merely  as  railway  proprietors,  the  case  would 
not  be  within  the  above  exemption  ;  because,  though 
the  act  usually  licenses  and  authorizes  the  company 
to  become  carriers,  still  it  does  not  render  it  com- 
pulsory on  them  to  do  so.  (i)  In  what  capacity  it  is 
intended  to  charge  them  in  a  particular  case,  must 
of  course  depend  on  the  frame  of  the  declaration  m 
that  case.  In  an  action  against  a  railway  company, 
the  declaration  alleged  the  company  to  be  owners 
and  proprietors  of  a  railway,  and  that  being  such 
owners  they  received  certain  horses  to  be  safely  and 
securely  carried  on  their  railway  from  L.  to  B.,  and 
there  delivered,  and  that  through  their  neglect  in 
carrying  the  horses  and  in  the  management  of  their 
carriages,  the  carriages  containing  the  horses  were 
thrown  off  the  line,  and  one  of  the  horses  was  killed 
and  the  rest  injured.  It  was  held  that  the  company 
were  charged  in  the  character  of  common  carriers, 
and  were  consequently  not  entitled  to  any  notice  of 
action,  (/c)  Under  a  declaration  in  the  above  form 
the  action  must  still  be  deemed  to  be  brought 
against  the  company  in  the  capacity  of  carriers 
rather  than  of  railway  proprietors,  although  in  con- 
sidering the  evidence  against  them  as  carriers,  it  is 

(i)  Palmer  v.  The  Grand  Junction  Railway  Com-pany,  4  M, 
&  W.  749  ;  Carpue  v.  The  London  and  Brighton  Railway  Com- 
pany, 22  Law  Journ,  Q.  B.  133  ;  S.  C.  5  A.  &  E.  N.  S.  747. 

(k)  Palmer  v.  Grand  Junction  Raihoay  Company,  4  M.  & 
W.  749. 


380     Remediex  for  or  against  Railway  Companies. 

impossible  to  exclude  some  reference  to  the  proof 
of  the  actual  state  of  the  railway.  (/) 

521.  With  respect  to  the  former  branch  of  the 
protecting  clause,  viz.  that  which  speaks  of  acts 
done  in  pursuance  of  the  act,  a  thing,  it  seems,  is  to 
be  considered  as  done  in  pursuance  of  an  act  where 
the  person  who  does  it  is  acting  honestly  and  bona 
fide  either  under  the  powers  which  the  act  gives,  or 
in  discharge  of  the  duties  which  it  imposes.  Though 
he  may  erroneously  exceed  the  powers  the  act 
gives,  or  inadequately  discharge  the  duties,  yet  if  he 
acts  bona  fide  in  order  to  execute  such  powers,  or 
to  discharge  such  duties,  he  is  to  be  considered  as 
acting  in  pursuance  of  the  act,  and  as  entitled  to  the 
protection  conferred  upon  persons  whilst  so  acting. (m) 

522.  Next  as  to  the  nature  and  extent  of  the  pro- 
tection afforded  by  the  act,  and  herein  (1st,)  of  the 
limitation  of  actions;  (2dly,)  of  the  notice  of  action  ; 
and  (Srdly,)  oi  tender  of  amends.  (1st.)  Supposing 
the  act  to  be  of  such  a  character  as  fairly  to  fall 
within  either  branch  of  the  above  description,  the 
statute  usually  requires  that  all  actions  against  the 
company  in  respect  thereof  shall  be  brought  within 
a  certain  period  next  after  the  act  committed,  or  in 
case  there  shall  be  a  continuation  of  damage,  then 
within  the  like  period  after  the  committing  of  such 
damage  has  ceased.  In  considering  the  effect  of  the 
above  limitation,  there  are  four  cases  to  be  distin- 
guished ;  ]  St,  where  the  act  of  the  company  pro- 
duces immediate  injury  and  that  injury  is  complete 

(/)  Carpue  v.  The  London  and  Brighton  Railway  Cotnpanif, 
22  Law  Journ.  Q.  B.  133  ;  6.  C.  6  A.  &  E.  N.S.  747. 

(m)  See  judgment  of  Bayley,  J.,  in  Smith  v.  Shaic,  10  B.  & 
C.  284. 


Remedies  for  Strangers  against  Railway  Comps.   .381 

as  soon  as  the  act  is  done  ;  in  this  case  the  time  of 
limitation  must  be  considered  to  run  from  the  doing 
of  the  act ;  (/j)  2ndly,  where  the  act  every  day  causes 
a  fresh  accession  of  injury,  as  in  the  case  of  forcing 
back  or  diverting  water,  or  the  misconstruction  of  a 
drain,  whereby  a  continuing  leakage  is  occasioned 
into  adjoining  land,  and  its  value  in  consequence 
deteriorated,  here  the  period  of  limitation  must  it  is 
conceived  be  considered  to  run  from  the  cesser  of 
tlie  damage  ;  (o)  Srdly,  where  there  is  a  continuing 

(71)  Lloyd  V.  Wigney,  6  Bing.  489  ;  Lord  Oakley  v.  Ken- 
sington Canal  Company,  5  B.  &  Ad.  138. 

(o)  Kennel  and  Avon  Canal  Company  v.  Great  Western  Rail- 
way Company,  23  L.  J.  Q.  B.  325  ;  S.C.Q  Jur.  788.  That 
was  an  action  of  debt  to  recover  a  certain  amount  of  liquidated 
damages,  as  compensation  to  the  plaintiffs  for  impediment  and 
obstruction  to  the  traffic  upon  their  canal  by  certain  operations 
of  the  defendants  for  the  improvement  of  their  railway.  The 
defendants  were  incorporated  by  the  5  &  6  Will.  4,  c.  107,  under 
the  powers  of  which  their  railway  was  constructed  ;  by  6  Will.  4, 
c.  37,  they  were  enabled  to  alter  their  line  of  railway  ;  and  a 
further  power,  with  a  like  effect,  was  given  them  by  1  Vict.  c. 
91.  The  works  by  which  the  alleged  damage  to  the  plaintiffs 
arose  were  carried  on  under  the  authority  of  the  latter  act. 

By  sect.  223  of  stat.  5  &  6  Will.  4,  c.  107,  (the  original  act), 
no  action  was  to  be  brought  against  any  person  for  anything 
done  or  omitted  to  be  done  in  pursuance  of  that  act,  or  in  exe- 
cution of  the  powers,  authorities,  or  any  of  the  orders  made, 
given,  or  directed  in,  by  or  under  that  act,  unless,  amongst  other 
things,  such  action  should  be  commenced  within  six  calendar 
months  next  after  the  act  committed,  or,  in  case  there  should  be  a 
continuation  of  damage,  then  within  six  calendar  months  next 
after  the  doing  or  committing  the  damage  should  have  ceased.  By 
1  Vict.  c.  91,  which  embodied,  by  way  of  reference,  the  above 
provision  of  the  5  &  6  Will.  4,  it  was  enacted,  that  if,  by  reason 
of  any  accident,  or  in  the  execution  of  any  of  the  works  by  that 
act  authorized,  otherwise  than  from  neglect  or  mismanagement 


382     Remedies  for  or  against  Railway  Companies. 

cause  of  injury,  but  the  damage  ceases  from  time  to 
time  and  then  revives  ;  here  it  seems  the  time  of 
each  fresh  cessation  of  damage  must  be  taken  as  the 
point  from  which  the  period  of  limitation  is  to  be 
measured ;  (^)  4thly  and  lastly,  where  the  act  of  the 
company  is  actionable  only  by  reason  of  the  conse- 
quential damages  resulting  from  it,  and  no  imme- 
diate damage  is  thereby  occasioned  ;  in  this  case 
the  period  of  limitation  must  be  measured,  not  from 
the  doing  of  the  act,  which  causes  the  consequential 
injury,  but  from  the  happening  of  such  injury.  (^) 

523.   (2nd\y.^  Of  notice  of  action.     In  cases  falling 
within  the  above  provision,  not  only  must  the  action 

of  the  canal  company,  the  canal  or  tovving  paths  should  be  ob- 
structed so  that  barges  should  be  impeded,  the  railway  company 
should  pay  to  the  canal  company,  as  or  by  way  of  ascertained 
damages,  10/.  for  every  hour  during  which  such  impediment 
©r  obstruction  should  continue,  and,  in  default  of  payment 
on  demand,  the  said  canal  company  might  sue  for  the  same. 
The  impediment  and  obstruction  complained  of  took  place  for  99 
consecutive  hours  in  November,  1840,  and  for  115  consecuiive 
hours  in  June,  1841.  In  May,  1842,  the  canal  proprietors  de- 
manded compensation  for  the  above  obstructions,  which  the 
demand  described  as  having  ceased  respectively  in  the  above 
months,  and  on  the  27th  day  of  July,  a.d.  1842,  brought  their 
action  for  the  sum  demanded.  The  main  question  was  whether 
the  action  was  brought  in  time  or  not.  The  court  were  of 
opinion,  looking  at  the  latter  part  of  the  section  in  question,  and 
particularly  at  the  words  "  in  case  there  shall  be  a  continuation 
of  damage,  then,  within  six  calendar  months  next  after  the  doing 
or  committing  of  such  damage  shall  have  ceased,"  that  the  im- 
pediment and  not  the  demand  was  to  be  considered  as  the  cause 
of  action,  and  consequently  that  the  action  was  brought  too  late. 

(p)  Blakemore  v.  Glamorganshire  Canal  Company,  3  Y.  &c  J. 
60. 

y^q)  Gillon  v.  Boddington,  1  Car.  &  P.  541 ;  S.  C.  R.  &  M. 
61  .  Roberts  v.  Bead,  16  East,  215. 


Remedies  for  Strangers  against  Railway  Conips.   383 

be  brought  within  a  given  period,  but  prior  to  its 
commencement,  by  way  of  necessary  preliminary,  a 
notice  of  action  must  be  given  by  the  intended 
plaintift'  to  the  company.  The  obvious  purpose  of 
this  notice  is  to  inform  the  company  of  the  grounds 
of  complaint  on  which  the  other  party  intends  to 
rely.  It  must  accordingly  include  the  plaintiff's 
entire  grievance,  as  he  can  recover  for  nothing 
which  is  not  within  the  terms  of  his  notice,  (r) 

524.  (Srdly.)  A  still  further  protection  is  usually 
given  to  the  company  by  the  act's  empovvering  them, 
in  case  of  any  trespass,  &c.  committed  in  the  exe- 
cution of  the  act,  &c.,  to  tender  amends  (s)  before 
action  brought ;  if  the  plaintiff  notwithstanding 
chooses  to  proceed  with  his  action,  he  does  so  at 
the  risk  of  failing  in  it,  in  case  the  amends  tendered 
prove  sufficient. 

525.  3rdly.  Of  the  process,  (t)  A  railway  act 
usually  makes  provision  for  the  service  of  process 
on  the  company.  Either  it  may  be  served  per- 
sonally upon  a  secretary  or  clerk  of  the  company, 
or  left  at  the  office  of  the  company,  or  of  a  secretary 
or  clerk,  or  delivered  to  some  inmate  at  such  office 
of  the  company,  or  at   the   last  or  usual  place  of 

(r)  Lloyd  V.  Wigney,  6  Bing.  496. 

(s)  See  Companies  Clauses  Consolidation  Act  (8  Vict.  c.  16), 
s.  141,  post,  App. ;  Lands  Clauses  Consolidation  Act  (8  Vict, 
c.  18),  s.  135,  post,  App. ;  Railways  Clauses  Consolidation  Act 
(8  Vict.  c.  20),  s.  139,  post,  App. 

(0  As  to  service  of  process,  &c.  on  the  company  under  the 
Companies  Clauses  Consolidation  Act  (8  Vict.  c.  16),  see 
act,  s.  135,  post,  App. ;  under  Lands  Clauses  Consolidation 
Act  (8  Vict.  c.  18),  see  act,  s.  134,  post,  App.;  and  under 
Piailways  Clauses  Consolidation  Act  (8  Vict.  c.  20),  see  act,  s. 
138,  post,  App. 


384     Remedies  for  or  against  Railwaij  Companies. 

abode  of  such  secretary  or  clerk,  or  in  case  the  same 
respectively  shall  not  be  known,  then  personal  ser- 
vice on  any  other  agent  or  officer  of  the  company, 
or  on  any  one  director,  or  delivering  the  process  to 
some  inmate  of  the  last  or  usual  place  of  abode  of 
such  agent  or  officer,  is  to  be  deemed  good  service 
on  the  company.  The  mode  of  service  thus  pre- 
scribed by  the  act  must  be  strictly  pursued,  (m) 

o2Q.  4thly.  Of  the  ])leadings.  A  declaration 
against  a  railway  company  must  possess  the  usual 
requisites  of  an  ordinary  declaration.  It  must  there- 
fore show  the  nature  of  the  right  which  the  plaintiff 
alleges  to  have  been  violated. 

527.  Where  it  is  only  in  consideration  of  some 
precedent  or  cotemporaneous  act  to  be  done  by  the 
other  side,  that  a  duty  is  cast  upon  the  company, 

(jt)  Evans  V.  Dublin  and  Drogheda  Railway  Company,  23 
Law  Journ.  Exch.  245 ;  S.  C.  4  M.  &  VV.  142.  There  the  de- 
fendant's act  enacted,  that  service  of  a  writ  upon  a  secretary  of 
the  company,  or  leaving  the  same  at  the  company's  office,  or 
delivering  it  to  some  inmate  at  such  office,  or  at  the  abode  of  the 
secretary,  or  in  case  the  same  respectively  should  not  be  found 
or  known,  then  service  on  any  other  agent  of  the  company,  or 
on  any  one  director  of  the  said  company,  &c.  should  be  deemed 
a  good  service.  The  company  had  an  office  in  Dublin :  held, 
that  a  writ  of  summons  against  the  company  ought  to  be  served 
in  Ireland,  and  that  service  of  an  English  writ  of  summons 
upon  a  director  in  London  was  bad,  and  the  court  set  aside  a 
judgment  founded  thereon.  Service,  however,  might  be  on  a 
director,  where  the  secretary  or  other  inmates  of  the  company's 
office  could  be  found;  ibid,  judgment  of  Parke,  B.  See  also 
Doe  d.  Fisher  v.  Roe,  3  Railw.  Cas.  145,  where,  in  ejectment 
to  recover  land,  forming  part  of  the  bed  of  a  canal  in  the  occu- 
pation of  an  incorporated  company,  service  of  declaration  on  a 
clerk  of  the  company  at  their  office  was  held  sufficient  for  a  rule 
nisi  for  judgment  against  the  casual  ejector. 


Remedies  for  Strangers  against  Railway  Comps.  385 

the  declaration  must  contain  such  averments  of  per- 
formance or  of  an  offer,  &c.  of  performance  (as  the 
case  may  be)  as  are  requisite  to  show  a  liability  in 
the  company  to  perform  such  duty,  (x)  In  declaring 
therefore  against  a  railway  company  as  carriers  for 
the  not  receiving  goods  tendered  them  for  the  pur- 
pose of  carriage,  the  plaintiff  must  aver  that  he  was 
ready  and  willing  to  pay  the  carriage,  and  that  he 
notified  that  readiness  and  willingness  to  the  com- 
pany ;  but  he  need  not  it  seems  allege  a  strict  legal 
tender,  as  it  is  in  fact  unnecessary,  (y) 

528.  The  declaration  must  likewise  contain  a  suf- 
ficient averment  of  the  company's  breach  of  duty. 
In  an  action  against  a  railway  company,  the  declara- 
tion charged  that  the  company  upon  the  occasion  of 
making  certain  excavations  in  land  near  the  founda- 
tions of  a  house  adjoining  the  plaintiff's  house,  &c. 
would  not  use  due  care  or  skill,  or  take  proper  pre- 
cautions in  the  making  of  such  excavations,  and  that 
they  proceeded  so  carelessly  with  their  works,  (s) 
without  taking  due  care  and  precautions  to  prevent 
the  house  near  which  they  were  digging  falling 
against  the  plaintiff's  house,  that  by  reason  of  their 
carelessness,  &c.  and  for  want  of  due  precautions  on 
the  occasion  aforesaid,  the  former  house  fell  against 
the  plaintiff's,  &c. ;  it  was  held  on  general  demurrer 
that  the  breach  contained  a  sufficient  allegation  of 

(x)  As  to  necessity  of  averment  of  title,  &c.  in  action  against 
company  for  compensation  money,  see  ante,  p.  220. 

(y)  PickJ'ord  v.  Grand  Junction  Railway  Company,  2  Railw. 
Cas.  592 ;  S.C.&  M.  &  W.  372. 

(;)  Davis  v.  London  and  Blackmail  Railway  Company,  2 
Railw.  Cas.  308  ;  S.  C.  1  M.  &  Gr.  799. 

s 


386     Remedies  for  or  against  Railway  Companies. 

the  injury  to  the  plaintiff  having  been  caused  by  the 
negligence  of  the  defendants,  the  term  precaution 
being  equivalent  in  meaning  to  care  and  skill. 

529.  Next  of  the  grounds  of  defence  and  the  mode 
of  pleading  the  same.  The  act  usually  empowers 
the  company  to  plead  the  general  issue,  and  give  the 
special  matter  in  evidence,  where  they  are  sued  for 
any  act  done  or  omitted  to  be  done  in  pursuance  of 
the  statute.  («)  In  such  a  case  the  company  cannot 
plead  special  matter  together  with  the  plea  of  the 
general  issue  given  by  statute,  (a) 

530.  If  a  railway  company  be  sued  for  an  acci- 
dent occasioned  by  some  collision  on  the  railway, 
they  may  show,  by  way  of  defence,  that  the  acci- 
dent was  occasioned  by  the  negligence  of  the  other 
party,  or  of  those  to  whose  conduct  he  intrusted 
himself,  or  at  any  rate  that  there  was  on  their  own 
part  no  such  negligence  as  the  other  party  might 
not  by  ordinary  care  have  avoided,  so  as  to  make 
him  out  the  author  of  his  own  wrong,  (b)  In  an 
action  on  the  case,  defences  of  this  nature  are  open 
under  the  general  issue,  and  ought  not  to  be  pleaded 
specially ;  (6)  but  in  trespass  it  is  otherwise. 

531.  Where  a  railway  company  are  sued  as  com- 
mon carriers  for  a  loss,  &c.  of  goods  intrusted  to 
them  for  carriage,  it  is  a  good  defence  that  the 
goods  were  of  a  particular  class,  in  respect  of  which 
they  were   exempted  from  all  liability  by  virtue  of 

(a)  See  Fisher  v.  Thames  Junction  Railioay  Company,  5 
Dowl,  773. 

(6)  Armitage  v.  Grand  Junction  Railway  Company,  6  Dowl. 
340  ;  Bridge  v.  Grand  Junction  Railtoay  Company,  3  M.  &  W. 
244. 


Remedies  for  Strangers  against  Railway  Comps.    387 

their  act  of  incorporation.     This  defence  would  also 
seem  to  be  open  under  the  general  issue,  (rf) 

532.  If  a  railway  company  are  sued  for  the  con- 
version of  goods,  which  they  are  entitled  to  hold  by 
way  of  security,  or  to  employ  for  some  given  pur- 
pose, by  virtue  of  a  stipulation  with  the  owner  for 
the  time  being,  they  may  set  up  in  answer  their 
right  of  lien,  or  a  retainer  and  employment  of  the 
goods  upon  the  terms  of  and  for  the  purposes  con- 
templated  by  the  stipulation,  (e) 

533.  Where  a  railway  company  plead  a  plea  which 
amounts  to  the  general  issue,  and  does  not  consist  of 
matter  of  excuse,  the  general  replication  de  injuria 
is  ill.  (d) 

534.  So  likewise  where  the  company  justify  a 
conversion  of  goods,  with  which  they  are  charged 
by  the  declaration,  under  a  right  to  use  the  goods 
for  a  particular  purpose  and  within  a  given  locality, 
which  is  indisputable,  but  the  company  have  actually 
used  them  for  a  different  purpose,  and  beyond  the 
specified  local  limits,  the  plaintiff  should  new  assign, 
and  should  not  reply  de  injuria,  (e) 

535.  2.  Of  Mandamus.  In  treating  of  this  branch 
of  our  subject,  it  is  proposed  to  consider,  1st,  when 
a  mandamus  lies  to  a  railway  comixtny  ;  2nd]y,  what 
is  necessary  to  the  obtaining  it ;  3rdly,  the  requisites 
of  the  writ ;  4thly,  the  return. 

536.  1st.  In  what  cases  a  mandamus  lies  to  a  rail- 

(ti)  Elwell,  V.  Grand  Jttnction  Railway  Company,  5  AI.  &  W. 
669. 

(e)  Hawthorn  v.  Neu'caslle-vpon-Tyne  and  North  Shields 
Railway  Company,  2  Railw.  Cas.  305  ;  S.  C.  3  Ad.  &  E.  N.  S. 
734,  n.  (a). 

s   2 


388  Remedies  for  or  against  Railway  Companies. 

way  company.  (/)  As  a  general  rule,  a  mandamus 
lies  against  a  railway  company  where  they  refuse  to 
proceed  in  some  course  prescribed  by  law,  or  to  do 
what  they  are  required  by  their  act  of  incorporation 
to  do,  and  there  is  no  other  effectual  remedy  {g)  to 
compel  obedience  to  the  declared  will  of  the  legis- 

(/)  As  to  mandamus  to  make  calls  or  enforce  payment  of 
calls  made,  see  ante,  pp.  276, 277  ;  also  as  to  mandamus  to  enter 
probate  of  will,  see  ante,  p.  249,  n.  (e)  ;  as  to  mandamus  to  enter 
minutes  of  meeting,  see  Rex  v.  Mayor,  S^c.  of  Eversham,  8  A.  & 
E.  266, 

(g)  But  it  is  no  objection  to  the  granting  of  a  mandamus  to 
do  a  particular  act,  that  an  indictment  also  lies  for  the  omission 
to  do  such  act,  as  an  indictment  may  not  afford  so  convenient 
and  effectual  a  remedy  as  can  be  obtained  by  mandamus  ;  Rex  v. 
Severn  and  Wye  Railway  Company,  2  B.  &  Aid.  646  ;  Reg.  v. 
Bristol  Dock  Company,  2  A.  &  E.  N.  S.  64  ;  see  also  Reg.  v. 
Norwich  and  Brandon  Railway  Company,  24  Law  Journ.  Q.  B. 
24 ;  there,  by  a  railway  act,  the  company  were  required  to  con- 
struct a  bridge  over  a  river,  so  as  to  leave  the  same  width  of 
water-way  under  the  same  as  existed  at  the  time  when  the  act 
passed,  at  the  point  where  the  river  was  crossed,  and  so  that 
there  should  be  at  all  times  a  clear  height  of  five  feet  above  the 
ordinary  level  of  the  river ;  and  it  was  further  provided,  that 
after  notice  given  to  the  company  by  any  owner  or  occupier  of 
lands  adjoining  the  railway  that  the  said  bridge  was  not  made 
according  to  the  true  intent  and  meaning  of  the  act,  it  should  be 
lawful  for  such  owner  or  occupier  to  apply  for  and  obtain  an 
order  from  a  justice  of  the  peace  enabling  such  person  to  make 
such  bridge  accordingly,  the  expenses  to  be  defrayed  by  the  com- 
pany. It  was  held  that  the  remedy  given  under  the  act  by  appli- 
cation to  a  justice  did  not  apply  so  as  to  prevent  a  mandamus 
being  granted.  And  semble,  where  a  power  of  distress  is  given  by 
statute  which  proves  fruitless,  that  does  not  prevent  a  manda- 
mus being  subsequently  issued.  Judgment  of  Patteson,  J.,  in 
Reg.  V.  London  and  Blackwall  Railway  Company,  24  Law 
Journ.  Q.B.  42. 


Remedies  for  Strangers  against  Railway  Comps.  389 

lature  (h) ;  as,  for  instance,  where  the  company 
refuse  to  issue  their  warrant  to  the  sheriff  for  the 
summoningof  a  jury  to  assess  the  damages  sustained 
by  a  party  in  the  course  of  the  execution  of  the 
powers  of  the  act  by  the  company,  (i)  or  to  pay 
into  the  Bank  the  amount  of  the  compensation 
assessed  by  the  jury  where  the  party  cannot  make 
out  a  title,  (k)  or  to  take  the  necessary  steps  in 
order  to  complete  their  line  of  railway,  (h)  or  to 
make  watering  places  in  pursuance  of  the  requisitions 
of  their  act  in  lieu  of  ancient  watering  places,  access 
to  which  has  been  cut  off  by  the  railway,  (m)  or  to 
reinstate  and  lay  down  a  line  of  railway  which  they 
have  taken  up,  (n)  or  a  road  with  which  they  have 
interfered,  and  the  like,  (o) 

537.  From  what  has  been  said,  it  is  easily  disco- 
verable in  what  cases  a  mandamus  is  not  the  proper 
remedy  against  a  railway  company.  In  the  first 
place,  a  mandamus  will  not  be  granted  to  compel 
the  performance  by  a  railway  company  of  that  which 
is  not  made  compulsory  on  them  by  their  act,  and 
which  being  part  of  the  general  law  of  the  land,  may 
be  enforced  by  action,  (p)    Accordingly,  a  mandamus 

(h)  Reg.  V.  Eastern  Counties  Railway  Company,  1  Railw.  Cas. 
518  ;  S.  C.  2  Railw.  Cas.  260  ;  10  A.  &  E.  531 . 

(i)  Reg.  V.  Eastern  Counties  Railway  Company,  2  A.  &  E. 
N.  S.  347, 

(k)  See  ante,  p.  221. 

(7n)  Reg.  V.  York  and  North  Midland  Railway  Company,  23 
Law  Journ.  Q.  B.  277. 

(n)  Rex  V.  Severn  and  Wye  Railway  Company,  2  B.  tk  Aid. 
646. 

(o)  See  ante,  p.  105. 

(p)  Exparte  Robins,!  Dowl.566. 


390    Remedies  for  or  against  Railway  Companies 

was  refused  to  a  railway  company  to  compel  them 
to  convey  goods  along  their  line,  no  clause  in  their 
act  of  incorporation  requiring  them  to  carry  the 
goods  of  all  persons  who  presented  them  for  con- 
veyance, though  they  had  agreed  with  certain  per- 
sons to  carr^'^  their  goods  to  the  exclusion  of  all 
others,  (p)  Even  where  the  company's  act  imposes 
on  them  an  obligation,  yet,  if  there  is  another  re- 
medy open  to  the  party  in  whose  favour  such  obli- 
gation is  imposed,  equally  efficacious  as  a  writ  of 
mandamus,  a  mandamus  will  not  be  granted  ;  as,  for 
instance,  where  a  railway  act  enacted,  that  the  com- 
pany thereby  established  should  in  a  given  event  pay 
to  a  certain  other  company  a  sum  not  exceeding  a 
given  am-ount,  the  event  having  happened,  it  was 
held  that  mandamus  was  not  the  proper  mode  of 
compelling  payment  of  the  money,  as  debt  would 
lie  on  the  statutory  obligation.  (</)  So  where  it  is 
sought  to  recover  compensation  for  injuries  not  oc- 
casioned in  the  execution  of  the  company's  statutory 
powers,  or  which  do  not  fall  within  the  scope  of  the 
compensation  provided  by  the  statute,  the  complain- 
ant ought  to  proceed  by  action  and  not  by  manda- 
mus. 

538.  Again,  the  court  will  not  interfere  by  man- 
damus where  the  company  are  actually  and  bona  fide 
pursuing  the  course  prescribed  by  their  act,  simply 
in  consequence  of  some  delay  or  misapprehension 
or  error  in  their  course.  (?)     And,  while  the  works 

(/j)  Ex  parte  Robins,  7  Dowl.  566. 

(g)  Reg.  V.  Huliand  Selby  Railicay  Company, 22  LawJourn. 
Q.B.  257. 

(r)   Reg.  V.  Eastern  Counties  Railway  Company,  10  A.  &  E. 
7,  judgment  of  Lord  Denman,  C.  J. 


Remedies  for  Strangers  against  Railway  Comps.  391 

of  the  company  at  a  particular  spot  are  still  un- 
finished, the  court  would  not,  in  general,  grant  a 
mandamus  to  compel  the  company  to  summon  a 
jury  to  assess  the  compensation  for  damage  done 
by  such  works,  but  would  wait  till  the  works  are 
finished,  and  every  thing  is  done  which  is  likely  to  be  ; 
and  this,  as  it  should  seem,  notwithstanding  there 
may  have  been  for  a  part  of  the  time  even  a  total 
cessation  of  all  operations  on  the  part  of  the  com- 
pany, (t)  This,  however,  supposes  that  the  company 
aro  proceeding  with  their  works  bona  fide ;  (t)  as  they 
would  not  be  allowed,  under  the  pretext  of  doing 
further  injury,  to  defer  indefinitely  the  making  com- 
pensation. 

539.  So  where  the  departure  from  what  the  act 
prescribes  is  but  in  some  trifling  respect ;  as  where  a 
company  erected  a  bridge  over  a  road  one  foot  and 
a  half  less  in  height  than  prescribed  by  their  act,  &c. 
it  was  held  that  the  inconvenience  was  not  of  that 
nature  that  a  mandamus  ought  to  be  awarded,  (u) 

540.  So  likewise  a  mandamus  may  be  refused 
where  a  party  fails  to  come  to  the  court  in  proper 
time.  Thus,  where  the  mjuries,  viz.  encroaching  on 
the  applicant's  land,  throwing  down  250  feet  of 
hedge,  &c.,  were  committed  as  far  back  as  1839,  a 
mandamus  was  refused  in  1845,  and  this  notwith- 
standing negociations  had  been  pending  (a)  between 
the  parties  almost  down  to  the  time  of  the  appli- 
cation. 

(t)  Ex  parte  Parkes,  5  Jur.  435. 

(it)   Tleg.  V.  Eastern  Cuur.ties  Railway  Company,  4  Jur.  318. 

(x)  Rei:;.  V.  Eastern  Counties  Railtvay  Company,  1845  ;  as  to 
when  lapse  of  time  held  not  to  deprive  party  of  remedy  for  com- 
pensation money,  see  ante,  p.  221. 


392     Remedies  for  or  against  Railway  Companies. 

541.  Where  a  mandamus  lies  against  a  company, 
it  is,  as  a  general  rule,  the  proper  remedy  to  be  pur- 
sued by  the  injured  party,  and  no  action  is  main- 
tainable. Thus  where  a  party  is  entitled  to  an  ease- 
ment over  lands  purchased  by  the  company,  {y)  he 
cannot,  it  should  seem,  under  the  usual  provisions 
of  a  railway  act,  maintain  an  action  for  acts  done 
upon  those  lands  to  the  prejudice  of  his  easement, 
but  as  soon  as  any  damage  is  actually  sustained,  he 
ought  to  claim  compensation  under  the  act. 

542.  If  part  of  an  injury,  for  which  a  party  seeks 
compensation,  has  been  done  under  the  powers  of  a 
railway  act,  the  proper  remedy  for  that  part  is  by  a 
mandamus  to  assess  such  compensation,  and  not  by 
an  action  at  law.  (z) 

543.  Where  an  application  for  a  mandamus  is 
made  merely  with  a  view  of  obtaining  the  opinion 
of  the  court  whether  the  proceeding  by  mandamus 
is  the  proper  one,  there  being  no  question  bond 
fide  in  contest  between  the  parties,  the  court  will 
refuse  to  give  any  decision,  but  grant  the  rule  for 
the  mandamus,  if  the  applicant  likes  to  take  it.  (a) 

544.  If  a  party  fail  in  his  application  for  a  man- 
damus by  reason  of  a  defect  in  the  way  in  which  he 
brings  his  case  forward,  he  is  not  in  general  enti- 
tled to  renew  the  application  on  amended  affidavits, 
showing  no  ground  of  application  which  might  not 
have  been  presented  before.  (6)     The  only  excep- 

(t/)   Thicknesse  v.  Lancaster  Canal  Company,  4  M.  &  W.  472. 
(s)  Judgment  of  Littledale,  J.,  in  Reg.  v.  The  North  Midland 
Railway  Company,  2  Railw.  Cas.  1. 

(a)  Reg.  V.  Directors  of  Blackwall  Railway,  9  Dowl.  558. 
(6)    Reg,  on  the  prosecution  of  the  Mayor,  8^c.  of  Maidenhead 


Remedies  for  Strangers  against  Railway  C'ovqjs.  393 

tions  which  the  court  will  generally  admit  are  where 
the  amendment  consists  merely  in  correcting  an 
error  in  the  title  or  jurat  of  the  affidavit.  (6) 

545.  2ndly.  It  is  to  be  considered  7vhat  is  neces- 
sary to  ground  an  application  for  a  mandamus,  (c) 
On  moving  for  the  writ  the  party  must  make  out  a 
reasonable  probability  of  the  company  being  in  fault, 
and  of  his  being  entitled  to  the  relief  he  seeks,  (c?) 
It  must  likewise  appear  that  the  company  have  been 
specifically  informed  of  what  they  are  required  to  do, 
and  have  refused  compliance,  (e)  A  direct  denial  is 
not  indeed  necessary  ;  but  there  should  be  enough  to 
show  that  the  company  withhold  compliance,  and 
distinctly  determine  not  to  do  what  is  required,  (e) 

V.  Great  Western  Railway  Company,  5  A.  &  E.  N.  S.  597  ;  .S.  C. 
1  D.  &  L.  P.  C.  874 ;  8  Jur.  107  ;  see  also  post,  p.  401. 

(b)  lb. 

(c)  As  to  what  terms  imposed  on  company  having  obtained 
enlarged  time  for  showing  cause  to  rule  for  mandamus,  see  Keg, 
V.  Birmingham  and  Gloucester  Railicay  Company,  3  Railw.  Cas. 
710. 

(d)  Reg.  V.  Xorth  Union  Ruiliray  Company,  1  Railw.  Cas. 
729  ;  S.  C.  8  Dowl.  P.  C.  329  ;  Reg.  v.  Eastern  Counties  Rail- 
way Company,  10  A.  &c  E.  531  ;  Reg  v.  Deptford  Pier  Company, 
8  A.  &  E.  916 ;  Reg,  v.  North  Midland  Railway  Company,  2 
Railw.  Cas.  1. 

(e)  Rex  V.  Brecknock  and  Abergavenny   Canal  Company,  3 

A.  &  E.  222  ;  Rex  v.  Wilts  and  Berks  Canal  Company,  3  A.  & 
E.  477  ;  Reg,  v.  Bristol  and  Exeter  Railway  Company,  21  Law 
Journ.  Q.  B.  106 ;  S.  C.  4  A.  &  E.  N.  S.  162.  See  also  Reg. 
V.  Norwich  and  Brandon  Railway  Company,  24  Law  Journ.  Q. 

B.  24.  There  a  bridge  being  in  the  course  of  construction  by 
a  railway  company,  which,  as  was  alleged,  did  not  comply  with 
the  act  in  certain  required  particulars  as  to  the  height  and  water- 
way, Cas  to  these  particulars  see  S.  C.  ante,  p.  388,  n.  (g)),  notice 
was  given  to  the  company  requiring  them  to  construct  a  bridge  of 
the  requisite  height,  and  leaving  the  requisite  width  of  waterway, 

s  5 


39i     Remedies  for  or  against  Railway  Canipanies. 

546.  Accordingly,  where  a  party  wishes  to  en- 
force by  mandamus  the  proper  execution  of  works 
on  the  part  of  a  railway  company,  (the  works  being 
such  as  the  company  is  authorized  by  its  act  to  do, 
but  in  a  manner  prescribed  by  such  act,)  he  must, 
after  the  work  is  completed,  specifically  require  the 
company  to  perform  those  things  which,  according 
to  his  view,  the  act  enjoins  ;  for  unless  such  demand 
be  made  after  the  completion  of  the  work,  and  com- 
pliance be  refused^  in  terms  or  virtually,  a  mandamus 
will  not  be  granted,  and  this  even  although  the  sta- 
tute has  been  palpably  disobeyed,  and  though  it 
assigned  a  limited  time  for  the  performance,  which 
time  has  elapsed.  Complaint  made  while  the  woi'k 
is  proceeding,  though  a  proper  precaution,  does  not 
excuse  the  omission  of  a  specific  demand  after  the 
completion.  (/) 

547.  If  any  condition  precedent  is  imposed  by  the 
act  constituting  the  company  as  a  necessary  preli- 
minary to  the  application,  a  compliance  with  it  must 
be  shown,  A  railway  act  not  unusually  requires 
that,  where  a  party  calls  on  the  company  to  cora- 

to  which  an  answer  was  sent,  stating  the  intention  of  the  company 
to  make  the  bridge  of  the  required  height,  but  that  service  of  any 
process  in  relation  to  the  other  matters  would  be  accepted  on 
behalf  of  the  company.  The  bridge  was  in  fact  raised  to  the  proper 
height,  and  a  cutting  at  the  side  of  the  river  was  commenced  for 
the  purpose  of  widening  it,  but,  owing  to  the  state  of  the  wea- 
ther, &c.  obliged  to  be  discontinued,  though  the  company,  as 
they  stated,  intended  to  go  on  with  it  as  soon  as  the  weather,  &c. 
permitted  ;  other  letters  were  sent  on  the  subject  to  the  railway 
company,  but  they  returned  no  answer.  T.  pon  a  rule  for  a  man- 
damus, it  was  held  that  the  above  circumstance  disclosed  a  suf- 
ficient refusal  by  the  company. 

(/)  ^^i-  '^-  Bristol  and  Exeter  Kailicay  Compa » i/,  ubi  supra. 


Remedies  for  Strangers  against  Railway  Comps.  395 

pensate  him  for  damages  resulting  from  the  execu- 
tion of  the  powers  of  the  act,  he  shall  give  a  bond 
for  the  due  prosecution  of  his  complaint,  &c.  before 
the  company  shall  be  obliged  to  issue  their  warrant 
for  the  assessment  of  such  compensation,  &c. ;  or  in 
case  the  company  think  lit  to  issue  their  warrant 
without  the  bond  being  first  entered  into,  they  may 
require  it  to  be  done  before  the  inquiry  is  com- 
menced. In  this  case  the  giving  of  the  bond  is  not 
necessarily  a  preliminary  step  to  the  application  for 
a  mandamus ;  but,  semble,  it  lies  on  the  company, 
when  they  are  applied  to  to  issue  their  warrant,  to 
require  a  bond,  and  then,  if  the  other  party  refuse 
it,  he  cannot  afterwards  ask  for  a  mandamus,  (g) 

(o)  ^^o-  V.  North  Union  Railicay  Compa)ty,  1  Railw.  Cas. 
729.  See  also  Reg.  v.  London  and  BlackwalL  Railivay  Com- 
pany, 24  Law  Journ.  Q.  B.  42.  In  that  case  it  appeared  that 
the  company's  act  provided  that  where  a  jury  gave  a  verdict  for 
the  same  or  a  greater  sum  than  should  have  been  offered  by  the 
company  for  the  purchase  of  lands,  &c.,  the  costs  of  such  in- 
quiry should  be  defrayed  by  the  company,  and  such  costs,  &c. 
should  be  settled  by  the  sheriff,  &c.  ;  and  in  case  they  were  not 
paid  within  ten  days  after  demand,  a  power  of  distress  was  given 
to  recover  them.  The  act  further  provided  that  the  costs  of  title 
should  be  borne  by  the  company,  and  that  if  the  company  and 
the  other  side  could  not  agree  as  to  the  amount,  such  costs  should 
be  ascertained  by  the  Court  of  Exchequer,  who  might,  on  peti- 
tion of  the  company,  order  them  to  be  referred  to  a  master  of  that 
court  for  taxation,  &c.  ;  and  that  tlie  said  court  might,  after  tax- 
ation, order  the  amount  at  which  the  costs  were  taxed,  Sec.  to  be 
paid  to  the  proper  parties,  &c.  On  a  rule  for  a  mandamus  to  the 
company,  commanding  them  to  pay  the  costs  of  an  assessment 
of  compensation,  and  also  certain  costs  of  title,  such  costs  not 
having  been  settled  by  the  sheriff,  &c.,  or  taxed  in  the  Court  of 
Exchequer,  it  was  held  that  the  application  was  premature,  and 
that  a  mandamus  could  not  issue,  at  all  events  until  after  the 


396     Remedies  for  or  against  Railway  Companies, 

548.  3rdly.  Of  the  requisites  of  the  writ.  The 
writ,  it  seems,  must  state  sufficient  to  show  that  a 
mandamus  can  go.  Where,  therefore,  a  party  com- 
plains of  the  company  refusing  to  make  him  com- 
pensation for  an  injury  done  under  the  powers  of 
their  act,  and  of  a  kind  which  the  act  requires  them 
to  compensate,  the  writ,  it  seems,  should  state  the 
nature  and  cause  of  the  injury  comiplained  of  speci- 
fically, and  not  simply  in  the  general  words  of  the 
act,  in  order  to  satisfy  the  court  that  the  case  falls 
within  the  provisions  of  the  act.  (Ji) 

549.  In  no  case  can  the  court  infer  a  fault  in  the 
company,  but  it  must  be  distinctly  charged.  {%)  A 
mandamus  was  issued  to  a  company,  (i)  suggesting 
that  they  had  been  required  by  a  landowner  on  the 
line  to  set  out  the  necessary  deviations,  and  to  pro- 
ceed to  complete  their  line,  but  that  they  had  refused 
to  purchase  the  necessary  land  on  a  particular  part 
of  their  line,  or  to  set  out  the  deviations,  or  to  com- 
plete the  railway ;  there  was  no  averment  that  the 
company  had  given  up  their  design,  or  had  wilfully 
exercised  any  injurious  option,  or  were  not  proceed- 
ing with  all  convenient  speed,  or  that  a  reasonable 
time  had  elapsed  without  due  preparations  being 
made,  or  that  it  would  not  be  more  advantageous  to 
abide  by  the  original  line  than  to  set  out  a  new  one  ; 
it  was  held  that  the  mandamus  was  insufficient. 

550.  So  also  the  mandatory  part  of  the  writ  ought, 
it  seems,  to  define  specifically  what  it  requires  the 

costs  had  been  ascertained  and  attempted  to  be  levied  under  the 
company's  acts. 

(h)  Reg.  V.  Eastern  Counties  Railway  Company,  2  Railvv.  Cas. 
746. 

(i)  Ibid.  10  A.  &  E,  531. 


I 


Remedies  for  Strangers  against  Railway  Comps.   397 

company  to  do,  and  should  not  confine  itself  to  a 
general  demand  of  compliance  with  the  provisions 
of  the  act.  (k) 

551.  4thly.  O^  the  return.  By  way  of  answer  to 
the  writ,  the  company  may  deny  that  the  damage 
has  been  caused  by  their  works,  whereupon  an  issue 
will  be  directed,  or  they  may  contend  that  the  injury 
is  not  one  for  which  the  act  pi'ovides  compensa- 
tion. (/)  But  it  is  not  a  good  return  to  say  that 
they  cannot  do  what  the  act  renders  it  obligatory  on 
them  to  do,  (m)  by  reason  of  the  cesser  of  their  com- 
pulsory powers,  or  of  the  insufficiency  of  their  funds, 
or  the  like,  or  that  they  have  done  something  else, 
which  answers  the  purpose  as  well,  (n)  So  likewise 
where,  in  answer  to  a  mandamus  requiring  the  com- 
pany, in  pursuance  of  their  act,  to  make  ponds  or 
watering  places  in  certain  closes  intersected  by  the 
railway,  the  defendants  made  a  return  stating  an  in- 
denture between  Sir  W.  M.  Milner,  the  prosecutor 
of  the  writ,  and  themselves,  by  which,  in  considera- 
tion of  his  not  opposing  the  alteration  of  their  line, 
it  was  agreed  that  they  should  pay  to  Sir  W.  M. 
Milner,  as  for  the  special  damage  thereby  occasioned 
to  the  lands  and  tenements  of  the  said  Sir  W,  M. 
Milner,  and  particularly  to  a  mansion  house  of  his, 
called  Bolton  Lodge,  the  sum  of  5000/.,  to  be  paid 
as  therein  mentioned,  and  to  be  exclusive  of  the 

(A:)  Reg.  V.  Eastern  Counties  Railway  Company,  3  Railw. 
Cas.  22  ;  S.C.2  A.k  E.  N.  S.  569. 

(t)  Reg.  V.  Eastei-n  Counties  Railway  Company,  5  Jur.  365. 

(m)  Reg.  V.  Birmingham  and  Gloucester  Railway  Ccmpany, 
2  Railw.  Cas.  701 ;  S.  C.  2  A.  &  E.  N.  S.  47. 

(n)  Ibid. ;  see  also  Reg.  v.  Manchester  and  Leeds  Railway 
Company,  2  Railw.  Cas.  720,  721 ;  S.  C.  3  A.  &  E.  N.  S.  528. 


398     Remedies  for  or  against  Railway  Companies. 

value  of  the  land  which  the  company  would  require 
for  the  purposes  of  the  said  railway,  and  damages 
which  the  company  might  commit  either  to  the  said 
W.  M.  Milner  or  his  tenants,  and  which  land  and 
damages  were  to  be  valued  and  paid  for  by  the  com- 
pany in  the  manner  provided  for  by  the  act,  unless 
the  parties  to  the  deed  should  otherwise  agree;  and 
further,  that  whenever  any  closes  or  pieces  or  par- 
cels of  land  or  groimd  belonging  to  him  should  be 
intersected  by  the  railway,  and  if  the  adjoining  land 
belonged  to  Sir  W.  M.  Milner,  and  he  should  re- 
quire the  same,  the  parts  on  each  side  of  the  railway 
should  be  thrown  into  the  adjoining  land  by  remov- 
ing the  fences,  drains,  gates  and  stiles,  in  a  sufficient 
and  workmanlike  manner ;  and  that  the  company 
would  and  should,  at  their  own  expense,  make  and 
complete  such  fences,  drains,  gates  and  stiles,  and 
other  conveniences  as  might  be  necessary  for  the 
redividing  of  the  fields  on  the  same  estate,  which 
should  be  intersected  by  the  railway,  and  for  laying 
them  to  the  adjoining  fields  of  the  said  estate  for  the 
purpose  of  convenient  occupation  ;  and  the  return 
further  stated  the  payment  of  the  5000/.  by  the  com- 
pany, and  that  Sir  W.  M.  Milner  gave  notice  that 
in  pursuance  of  the  deed  he  required  them  to  make 
such  fences,  drains,  gates,  stiles  and  other  conve- 
niences as  might  be  necessary,  setting  out,  as  one 
head  of  the  works  he  required  to  be  done,  the  ponds 
which  were  the  subject  of  the  writ ;  all  of  which  the 
defendants  alleged  to  have  been  executed,  except  the 
ponds;  it  was  held,  that  the  covenant  and  the  proceed- 
ings under  it  were  no  answer  to  the  mandamus,  the 
special  damages  for  which  the  5000/.  were  paid  being 
evidently  such  as  were  peculiar  to  Sir  W.  M.  Milner 


Remedies  for  Strangers  against  Railway  Corwps.  399 

in  the  alterations  of  the  line,  of  whatever  nature 
they  might  be,  and  not  such  damages  as  might  hap- 
pen to  any  person  whose  lands  were  intersected ; 
and  with  respect  to  the  other  clause  in  the  indenture, 
it  being  plain  that  the  word  "conveniences"  there 
used  did  not  apply  to  all  things  necessary  for  the 
occupation  of  the  land,  but  to  all  things  necessary 
for  the  redividing  and  laying  the  intersected  closes 
to  the  adjoining  land  for  the  purpose  of  convenient 
occupation ;  so  that  the  making  the  watering  places 
did  not  fall  within  its  provisions,  (o) 

552.  Where  the  return  contains  several  distinct 
heads,  part  may  be  quashed  upon  concilium,  and  the 
prosecutor  may  afterwards  have  leave  to  traverse 
the  other  parts,  {p)  if  necessary.  (<^) 

55S.  3.  Of  Certiorari.  Under  this  head  it  is 
proposed  to  consider,  1st,  w/^ew  a  writ  of  certiorari 
lies;  ^dly,  the  steps  to  he  taken  to  obtain  it;  and 
lastly,  how  it  may  be  taken  awaij,  and  what  are  the 
effects  of  its  being  so  taken  away. 

oo-i.    1st.    Where   the  proceedings   incidental   to 

(o^  Tieg.  V.  Yofk  and  North  Midland  Eaiiway  Company,  23 
Law  Journ.  Q.  B.  277. 

(p)  ^^i'  V.  North  Midland,  Railway  Company,  11  A.  &  E. 
955,  n.  (6)  ;  S.C.2  Railw.  Cas.  1 . 

(5)  As  to  costs,  see  Reg  v.  Eastern  Counties  Railway  Com- 
pany, 2  A.  &  E.  N.  S.  578  ;  Reg.  v.  Sheriff  of  Middlesex,  22 
Law  Journ.  Q.  B.  14  ;  S.  C.  3  Railw.  Cas.  396 ;  and  as  to  when 
error  lies  on  award  of  peremptory  mandamus,  see  Reg.  v.  Man- 
chester and  Leeds  Railway  Company,  ubi  supra.  See  also  Reg, 
V.  Bingham,  4  A.  &  E.  N.  S.  877,  where  costs  of  mandamus  to 
magistrate  to  hear  compensation  case  refused,  it  not  being  shown 
what  had  become  of  the  mandamus.  Pauperised  party  ordered 
to  pay  costs;  Reg.  v.  Blackicall  Railway  Company,  4  Jurist, 
859. 


400  Remedies  for  or  against  Railway  Companies. 

the  assessment  of  the  compensation  under  the  railway- 
act  are  irregular,  and  a  party  in  consequence  wishes 
to  bring  them  up  before  the  court  in  order  to  quash 
them,  a  writ  of  certiorari  is  the  proper  remedy  for 
that  purpose.     The  court  has  a  discretion  as  to  the 
granting  the  writ,  notwithstanding  there  are  defects 
on  the  face  of  the  proceedings  which  it  is  sought  to 
remove,  (r)     There  are  accordingly  various  circum- 
stances under  which  the  court  may  think  fit  to  refuse 
the  application.     The  conduct,  for  instance,  of  the 
party  applying  may  be  such  as  to  preclude  him  from 
obtaining  it;  as  where  a  party  seeks  to  take  advan- 
tage of  a  defect  on  the  face  of  the  inquisition,  which 
arises  from  his  having  himself  requested  that  the 
provisions  of  the  act  should  be  deviated  from ;  (s) 
or   again,   where  he  has  waived  the  objection   on 
which  he  seeks  afterwards   to  rely,  (t)     So,  where 
substantial  justice  has  been   done  notwithstanding 
all  defects  in  the  proceedings,  that  might  be  a  cir- 
cumstance to  convince  the  court  that  no  writ  ought 
to  issue ;  as  for  instance,  if  it  were  to  appear  that 
tlie  party  throughout   has  really  and  substantially 
had  every  advantage  in  the  course  of  the  proceed- 
ings that  the  statute  intended  to  secure  him,  and 
that  the  sum  awarded  is  as  much  as  he  could  rea- 
sonably expect,  and  that  at  any  rate  it  has  not  been 
less  on  account  of  the  defects  pointed  out.  («) 

(r)  Reg.  V.  Manchester  and  Leeds  Railway  Company,  8  A.  & 
E.  426. 

(s)  Judgment  of  Lord  Denman  in  Reg.  v.  Manchester  and 
Leeds  Railway  Company,  8  A.  &  E.  426 ;  Reg.  v.  Committee- 
men for  South  Holland  Drainage,  ibid.  429. 

(0  Ibid. 

(w)  Reg.  V.  Manchester  and  Leeds  Railway  Company,  8  A.  6c 
E.  413. 


Remedies  for  Strangers  against  Railway  Comps.  401 

555.  So,  likewise,  a  writ  of  certiorari  lies  where 
a  party  seeks  to  have  a  coroner's  inquest  against  a 
company  returned  into  the  Court  of  Queen's  Bench, 
in  order  to  take  advantage  of  the  forfeiture  conse- 
quent on  the  finding  of  the  jury.  When  the  inqui- 
sition is  returned,  the  party  interested  must  then 
issue  process  to  compel  the  appearance  of  the  com- 
pany. («')  If  they  appear,  they  may  plead  or  demur 
to  the  inquisition  in  the  same  order  and  form  as  in 
cases  of  indictments,  {x) 

556.  It  is  an  almost  invariable  rule  that  where  a 
party  fails  in  an  application  for  a  certiorari  by  rea- 
son of  his  not  coming  at  first  fully  prepared  with  a 
proper  case,  he  cannot  be  allowed  to  renew  his  ap- 
plication with  an  amended  case.  (?/) 

557.  2ndly.  We  have  to  consider  what  is  neces- 
sary in  order  to  obtain  a  certiorari,  (z)  The  party 
applying  must  then  swear  positively  to  the  exist- 
ence of  defects  in  the  pi'oceedings  he  is  seeking  to 
impugn,  and  also  specify  and  point  out  the  nature 
of  those  defects.  The  principle  by  which  the  court 
are  guided  in  issuing  such  writs,  is  not  to  issue  them 

(w)  Quaere,  whether  distress  infinite  would  not  be  the  proper 
process  in  this  case. 

(x)  Jervis  on  Coroners,  p.  288. 

(y)  See  ante,  p.  400,  n.  (k). 

(s)  As  to  stage  of  proceedings  at  which  objection  to  inquisi- 
tion may  be  taken,  see  Rex  v.  Trustees  of  Norwich  and  Watton 
Road,  5  A.  &  E.  563  ;  that  rule  to  show  cause  why  certiorari 
should  not  issue  is  properly  directed  to  clerk  of  company,  though 
record  of  inquisition  in  the  custody  of  clerk  of  the  peace,  see  Reg, 
V.  Manchester  and  Leeds  Railway  Company,  1  P.  &  D.  164; 
objections  not  in  general  given  effect  to,  when  made  by  party 
setting  the  proceedings  in  motion,  see  Reg.  v.  Trustees  of  Swan- 
sea Harbour,  8  A.  &  E.  439. 


402  Remedies  for  or  against  Railway  Companies. 

simply  on  the  ground  that  there  may  probably  be 
defects,  but  they  must  first  see  clearly  that  facts 
do  exist  which  will  bring  the  defects  before  them,  (a) 
If,  therefore,  the  party  rests  his  case  on  the  grounds 
of  the  statute  not  authorizing  the  proceedings,  he 
should  state  how  it  fails  to  do  so,  so  as  to  make  out 
clearly  the  want  of  authority,  (b)  If,  for  instance, 
he  goes  on  the  ground  of  the  lands  forming  the  sub- 
ject of  the  inquisition  not  being  properly  described, 
or  being  omitted  in  the  schedule,  he  must  go  on  and 
negative  the  justices  having  certified  that  it  arose 
from  mistake,  (fc) 

558.  Upon  a  like  principle,  where  the  objection  is 
to  the  form  of  the  inquisition,  (6)  the  party  should 
set  out  the  inquisition,  or  he  should  swear  that  he 
cannot  procure  a  copy  and  that  he  is  informed  of 
and  believes  the  facts  raising  the  objections. 

559.  Srdly.  Of  the  taking  away  of  the  writ  of  cer- 
tiorari and  of  the  effects  incidental  thereto.  In 
general,  a  writ  of  certiorari  can  only  be  taken  away 
by  the  express  words  of  a  statute,  though  it  is 
enough  for  this  purpose  if  the  express  provisions  of 
one  statute  on  the  subject  are  embodied  in  a  follow- 
ing one  by  reference,  (c) 

560.  Of  the  effect  of  the  taking  away  of  the 
certiorari.  The  effect  of  a  clause  of  the  above  na- 
ture is,  it  seems,  to  take  away  the  writ  in  all  cases 
where  there  is  substantially  jurisdiction.  Accord- 
ingly, where  a  proceeding  is   distinctly  originated 

(a)  Judgment  of  Lord  Denman,  C.  J.,  in  Reg.  v.  Manchester- 
and  Leeds  Railway  Company,  8  A.  &  E.  413. 

(b)  lb. 

(c)  Rex  V.  Jitslices  of  West  Riding  of  Yorkshire,  1  A.  &  E. 
572 ;  Rex  v.  Fell,  1  B.  &  Ad.  380. 


Remedies  for  Strangers  against  Railway  Comps.  403 

within  the  act,  a  mere  subsequent  irregularity  can- 
not affect  it  so  as  to  prevent  the  operation  of  the 
clause,  or  authorize  the  court  to  entertain  a  motion 
for  a  certiorari,  (d)  It  is  the  same  where  the  juris- 
diction substantially  exists,  but  has  been  exceeded 
in  some  trifling  respects ;  as,  for  instance,  where  the 
objections  to  the  company's  proceedings  were,  1st, 
that  they  had  deviated  from  the  parliamentary  line 
to  a  greater  extent  than  their  act  permitted ;  2nd, 
that  they  had  made  the  railway  through  a  piece  of 
land  not  included  in  the  book  of  reference,  and  not 
certified  to  have  been  omitted  by  mistake;  and  Sdly, 
that  for  aught  that  appeared  on  the  face  of  the  in- 
quisition to  the  contrary,  such  inquisition  was  taken 
by  a  common  instead  of  a  special  jury,  damage  to  a 
mansion   being   in    question.      The  party's   proper 

(d)  Reg.  V.  Sheffield,  Ashton-under-Lyne  and  Manchester 
Railway  Company,  1  Railw.  Cas.  544;  S.  C.  11  A.  &  E.  194  ; 
see  ante,  p.  202.  So  where  a  railway  act  provided  that  if  an 
agreement  for  compensation  for  damages  incurred  ia  the  execu- 
tion of  the  act  could  not  be  made,  the  company  should  issue 
their  warrant  to  the  sheriff  to  summon  a  jury,  &c.,  who  should, 
upon  their  oaths,  enquire  of,  assess  and  give  a  verdict  for  the 
sum  of  money  to  be  paid  by  way  of  compensation  for  the 
damages ;  no  form  of  warrant  was  given  in  the  act,  but  the 
act  contained  the  usual  clause  taking  away  the  certiorari ;  and 
the  court  issued  their  warrant  to  the  sheriff  requiring  the  latter  to 
summon  a  jury  for  the  purpose  of  assessing,  &c.  the  sum  of 
money  {if  any)  to  be  paid  to  A.  B.  by  way  of  compensation, 
and  the  jury  upon  the  inquisition  found  that  A.  B.  had  not  sus- 
tained any  damage,  the  court  refused  a  certiorari,  though  they 
seem  to  have  thought  that  it  would  have  been  better  if  the- 
words  '^  if  any"  had  been  omitted  in  the  warrant;  Reg.  v. 
Lancaster  and  Preston  Junction  Railway  Cumjmny,  23  Law 
Journ.  Q.  B.  84. 


404  Remedies  for  or  against  Kailway  Companies. 

remedy  in  such  a  case,  it  would  seem,  is  by  an  ac- 
tion of  trespass,  (e) 

561 .  But  where  there  is  a  total  want  of  jurisdiction, 
and  the  company  has  chosen  to  proceed  in  defiance 
of  the  act,  there  it  seems  the  clause  is  inapplicable 
and  the  writ  is  not  taken  away.  (/) 

5Q2.  Where  a  statute  does  not  allow  the  removal 
of  proceedings  by  certiorari,  the  court  cannot  in- 
directly bring  them  under  review  by  mandamus,  {g) 

II. — Of  Remedies  in  Equity. 

563.  Under  this  head  of  our  subject  it  is  proposed 
to  consider  three  points;  1st,  what  suits  2i  stranger 
may  have  against  the  company,  and  herein  more 
particularly  of  the  granting  an  injunction  against  the 
company ;  2dly,  who  are  the  proper  parties  to  such 
suits,  and  Sdly,  the  frame  of  the  pleadings,  SfC. 

564.  Suits  against  company.  Under  the  first 
head  is  to  be  considered,  1st,  the  relief  (A)  that  may 
be  had  against  a  railway  company  as  such,  and  i7i 
regard  of  its  peculiar  nature  and  constitution;  2d,  the 
relief  that  may  be  had  against  a  railway  company, 
grounded  not  so  much  on  its  nature  and  constitution 
as  on  the  general  nature  of  the  transaction. 

565.  The  general  principle  by  which  a  court  of 

(e)  Beg.  V.  Bristol  and  Exeter  Railway  Company,  2  Railw. 
Cas.  99  ;  S.  C.  11  A.  &  E.  202,  n. 

(/)  Judgment  of  Patteson,  J.  in  Reg.  v,  Sheffield,  Ashton- 
imder-hyne  and  Manchester  Railway  Company,  ubi  supra. 

(g)  Rex  V.  Justices  of  West  Riding  of  Yorkshire,  1  A.  &  E. 
563. 

(/i)  As  to  interference  of  court  of  equity  on  ground  of  insuffi- 
ciency of  the  company's  funds,  &c.,  see  ante,  p.  127  et  seq.,  and 
the  cases  there  cited. 


Remedies  for  Strangers  against  Raibvay  Comps.  405 

equity  is  guided  in  administering  relief  against  the 
acts  of  a  railway  company  is  this,  viz.,  that  where  a 
railway  company  go  beyond  the  powers  which  the 
legislature  has  given  them,  and  in  a  mistaken  exer- 
cise of  those  powers  interfere  with  the  property  of 
individuals,  it  is  the  duty  of  the  court  to  interpose 
for  the  purpose  of  strictly  keeping  the  company 
within  those  limits  which  the  legislature  has  thought 
proper  to  prescribe  for  the  exercise  of  their 
powers.  (J)  Accordingly,  if  a  railway  company 
enter  upon  land  and  take  possession  of  it  without 
first  settling  and  paying  the  price,  the  owner  may 
file  a  bill  in  equity  for  relief,  (k)  So,  if  they  at- 
tempt to  take  land  for  a  purpose  which  their  act 
does  not  authorize.  {I)  So,  if  they  actually  inter- 
fere or  threaten  to  interfere  with  any  road,  highway 
or  other  avenue  of  communication  without  first 
setting  out  a  temporary  substitute  according  to  the 
provisions  of  their  act ;  or  actually  obstruct  or 
threaten  to  obstruct  a  navigable  canal,  brook  or 
mill  stream  to  a  greater  extent  than  what  their  act 
authorizes  or  than  is  necessary  for  the  construction 
of  the  railway,  (m)  and  this  either  temporarily  or 
absolutely.     So  if  a  company  are  guilty  of  an  abuse 

(i)  See  Webb  v.  Manchester  aiid  Leeds  Railway  Company,  4 
My.  &  Cr.  120 ;  S.  C.  1  Railw.  Cas,  576 ;  Bell  v.  Hull  and 
Selby  Railway  Company,  1  Railw.  Cas.  636  ;  Kemp  v.  Brighton 
Railway  Company,  ibid.  495  ;  River  Dim  Navigation  Company 
V.  North  Midland  Railway  Company,  ibid.  153 ;  Agar  v.  Regent's 
Canal  Company,  Cooper's  Rep.  77. 

(k)  See  ante,  p.  172. 

(/)  Webb  V.  Manchester  and  Leeds  Railway  Company,  ubi 
supra. 

(m)  See  Manser  v.  Northern  and  Eastern  Counties  Railway 


406  Remedies  for  or  against  Railway  Companies. 

of  the  powers  given  tliem  by  their  act,  and  this  to 
the  detriment  of  the  traffic  of  another  line,  such, 
for  instance,  as  using  for  the  general  purposes  of 
their  traffic  a  branch  line  communicating  with  the 
latter  line,  which  they  have  only  a  right  to  use  for 
a  limited  purpose.  («) 

566.  It  is  no  ground  for  the  interposition  of  a 
court  of  equity  that  the  tribunal  which,  under  the 
company's  act,  is  entrusted  with  the  duty  of  ascer- 
taining what  satisfaction  is  to  be  paid  to  the  land- 
owners 8:c.,  is  not  so  constituted  as  to  be  likely  to 
come  to  a  just  conclusion.  It  being  the  legislature 
that  has  given  the  jurisdiction,  it  is  the  legislature, 
and  the  legislature  alone,  that  can  apply  a  remedy  if 
any  inconvenience  arise  from  the  legal  exercise  of 
that  jurisdiction,  (o) 

567.  Upon  the  filing  of  the  party's  bill  the  court 
in  general,  under  the  above  circumstances,  grants 
an  injunction  to  stay  the  company  from  taking  any 
further  proceedings  to  the  prejudice  of  the  com- 
plainant's property.  But  this,  of  course,  can  only 
be  in  a  case  where  the  court  is  very  clearly  of  opi- 
nion that  the  company  are  exceeding  the  powers 
which  the  act  has  given  them,  (^p)     In  a  case  of  ur- 

Company,  2  Railw.  Cas.  380  ;  Illingworth  v.  Manchester  and 
Leeds  Eailway  Company,  2  Railw.  Cas.  207. 

(n)  See  North  Union  Railway  Company  v.  Bolton  and  Preston 
Railway  Company,  3  Railw.  Cas.  345. 

(o)  Barnsley  Canal  Company  v.  Twibell,  3  Railw.  Cas.  471  ; 
S.  C.  7  Beav.  19. 

(p)  River  Dun  Navigation  Company  v.  North  Midland  Rail- 
way Company,  1  Railw.  Cas.  154,  155,  judgment  of  Lord  Chan- 
cellor. 


Remedies  for  Strangers  against  Railway  Comps.  407 

gency  such  an  injunction  may  be  moved  for  ex  parte 
even  after  the  defendants  have  appeared,  (q) 

568.  In  general  it  is  no  objection  to  the  issuing  of 
the  injunction,  that  irreparable  mischief  is  not  shown 
to  result  from  the  proceeding  of  the  company  against 
which  the  party  prays  by  his  bill  to  be  relieved,  (j) 
But  where  the  company  are  lawfully  in  possession  of 
property,  there  it  seems  a  case  must  be  made  of 
sudden  grievous  injury  to  the  inheritance  to  entitle 
the  reversioner  to  an  injunction,  (s)  Where,  indeed, 
it  is  shown  that  irreparable  mischief  is  likely  to 
result  from  permitting  the  company  to  go  on  with 
what  they  are  about,  that  may  be  a  ground  for  an 
injunction,  even  where  the  question  as  to  the  extent 
of  the  company's  power  is  doubtful,  (t) 

569.  Laches,  or  an  express  or  implied  acquiesence 
in  the  proceedings  of  the  company,  which  induces 
a  change  in  the  company's  position,  may  have  the 
effect  of  depriving  a  party  of  his  remedy  by  in- 
junction, (ii) 

{q)  Bell  V.  Hull  and  Selbij  Railway  Company,  1  Railw.  Cas. 
623,  624,  and  cases  there  cited. 

(r)  River  Dun  Navigation  Corn-puny  v.  North  Midland  Rail- 
way Company,  1  Railw.  Cas.  135. 

(s)  Mouchet  V.  Great  Western  Railway  Company,  1  Railw. 
Cas.  567. 

(t)  See  judgment  of  Vice-Ciiancelloi-  in  Bell  v.  Hull  and 
Selhy  Railway  Company,  1  Railw.  Cas.  632. 

(w)  Iltingworth  v.  Mancheiter  and  Leeds  Railway  Company, 
2  Railw.  Cas.  187  ;  Attorney-General  v.  Manchester  and  Leeds 
Railway  Compairy,  1  Railw.  Cas.  436  ;  Blukemore  v.  Glamor- 
ganshire Canal  Navigation,  1  ]My.  &  K.  154  ;  Innocent  v.  North 
Midland  Railway  Company,  1  Railw.  Cas.  256 ;  Gordon  v. 
Cheltenham  and  Great  Western  Railway  Company,  2  Railw.  Cas. 
800,  872;  6'.  C.  5  Beav.  229 ;  London  and  Brighton  Railway 


408  Remedies  for  or  against  Railway  Companies. 

.570.  In  general,  on  an  application  for  an  injunc- 
tion, the  court  acts  only  prospectively  and  with  a 
view  to  keep  matters  in  statu  quo ;  though,  where 
the  circumstances  render  it  requisite,  it  would  seem 
to  be  competent  for  the  court  to  grant  an  injunction 
restraining  the  company  from  allowing  a  thing  to 
continue,  and  thereby  indirectly  compelling  them  to 
do  some  positive  act  for  its  removal,  [x)  Acquies- 
cence, however,  by  the  complainant  in  the  acts  of 
the  company  against  which  he  seeks  relief,  may 
prevent  the  court  from  granting  an  injunction  of  the 
latter  description,  (y) 

571.  Sometimes  the  court  is  content  to  withhold 
an  injunction,  and  in  lieu  thereof  to  accept  of  the 
company's  undertaking  touching  their  future  pro- 
ceedings, where  this  latter  course  promises  to  secure 
to  the  complainant  all  the  substantial  results  of  the 
former,  (z)     An  undertaking  thus  entered  into  with 

Company  v.  Blake,  2  Railw.  Cas.  322  ;  Company  of  Proprietors 
of  Northam  Bridge,  8^c.  v.  London  and  Southampton  Railway 
Company,  1  Railw.  Cas.  681  ;  see  also  Greenhalgh  v.  Manchester 
and  Birmingham  Railway  Company,  3  M.  &  W.  784. 

(i)  Spencer  v.  The  London  and  Birmingham  Railway  Com- 
pany,  1  Railw.  Cas.  170  ;  Lane\.  Newdigate,  10  Ves.  192  ;  see 
d\%o  Attorney-Generalv .Manchester  and  Leeds  Railway  Company , 
1  Railw.  Cas.  451 ;  but  see  Blakemore  v.  Glamorganshire  Canal 
Company,  1  Myl.  &  K.  184.  In  the  Great  North  of  England, 
8^c.  Railway  Company  v.  Clarence  Railway  Company,  1  Coll. 
507,  an  injunction  was  granted,  in  effect  compelling  a  railway 
company  to  pull  down  walls  which  they  had  built  in  order  to 
prevent  another  railway  company  from  crossing  their  line. 

(y)  See  Attorney -General  v.  Manchester  and  Leeds  Railway 
Company,  ubi  supra. 

(s)  Attorney -General  v.  Manchester  and  Leeds  Railway  Com- 
pany, 1  Railw.  Cas.  451 ;  Jones  v.  Great  Westerii  Railway  Com- 
pany, 1  Railw.  Cas.  684;  Proprietors  of  Noriham,  Bridge,  S^c.v 


Remedies  for  Strangers  against  Railway  Comps.  409 

a  court  of  equity  is  equivalent  to  and  lias  the  effect 
of  an  injunction  so  far  that  any  infringement  thereof 
may  be  made  the  subject  of  an  application  to  the 
court.  («)  Where,  in  violation  of  an  undertaking 
thus  entered  into,  the  company  apply  to  parliament 
for  leave  to  bring  in  a  bill  which  may  relieve  them 
from  the  necessity  of  a  compliance  with  such  under- 
taking, still  if  the  House  of  Commons  entertain  the 
bill,  the  court  has  no  jurisdiction  to  restrain  the 
company  from  further  soliciting  such  bill,  which  is 
no  longer  to  be  viewed  as  the  proceeding  of  the  pe- 
titioners, but  as  that  of  the  legislature.  (6) 

5*12.  Where  the  extent  of  the  powers  given 
by  the  act  is  doubtful,  and  involves  a  question 
of  legal  right,  the  usual  course  pursued  by  a 
court  of  equity  under  such  circumstances  is  to 
put  the  parties  in  a  situation  to  try  as  quickly  as 
possible  the  legal  right,  and  in  the  mean  time  to 
protect  the  property  to  be  affected,  until  the  legal 
right  be  ascertained,  (c)     Or  if  the  case  be  one  of 

Southampton  Railway  Company ,  1  Kailw.  Cas.  653.  And  where 
it  appeared  that  though  the  company  had  acted  illegally  in  enter- 
ing on  plantiff's  land,  yet  that  it  was  necessary  that  immediate 
steps  should  be  taken  to  ensure  the  public  safety,  the  court  re- 
fused an  injunction,  but  with  the  consent  of  the  counsel  for  the 
company  directed  the  latter  to  pay  into  court  the  probable  value 
of  the  land  ;  Tower  v.  Eastern  Counties  Railway  Company,  3 
Railw,  Cas.  374. 

(a)  The  London  and  Birmingham  Railway  Company  v.  Grand 
Junction  Canal  Company,  1  Railw.  Cas.  224,  judgment  of  Mas- 
ter of  Rolls. 

(6)  Attorney -General  v.  The  Manchester  and  Leeds  Railway 
Company,  1  Railw.  Cas.  436. 

(c^  Kemp  V.  London  and  Brighton  Railway  Company,  1 
Railw.  Cas.  504;  Bell  v.  Hull  and  Selby  Railway  Company,  1 
Railw.  Cas.  616;  Gordon  v.  Cheltenham  Railway  Company,  5 

T — Z 


410  Remedies  for  or  against  Raihvay  Companies. 

extreme  doubt,  or  the  balance  of  inconvenience  pre- 
ponderates greatly  on  the  side  of  the  company,  the 
court  may  suspend  the  injunction  till  the  right  is 
determined  at  law.  (J) 

573.  After  an  injunction  is  granted  on  any  of  the 
grounds  above  suggested,  it  is  open  subsequently  to 
be  dealt  with  by  the  court,  according  to  the  merits  of 
the  case,  and  so  as  to  do  substantial  justice  between 
the  parties.  Where  therefore  an  injunction  was 
granted,  restraining  a  company  from  continuing  to 
stop  up  a  road,  it  appearing  that  the  road  would  be 
restored  in  a  shorter  period  of  time  by  permitting 
the  company  to  complete  their  work,  than  by  en- 
forcing the  terms  of  the  order,  the  injunction  was, 
with  the  assent  of  the  plaintiffs,  suspended  for  three 
weeks,  to  afford  time  accordingly,  (e)  And  if  the 
court  clearly  sees  that  they  can  secure  to  the  plain- 
tiff all  the  benefit  to  which  he  is  entitled,  without 
inflicting  on  the  company  so  much  injury  as  to  con- 
tinue the  injunction,  they  are  ready  to  listen  to  an 

Beav.  240  ;  Attorney-Genera!  v.  Eastern  Counties  and  Northern 
and  Eastern  Counties  Railway  Companies,  2  Railw.  Cas.  823. 
As  to  the  nature  of  the  order  that  a  court  of  equity  will  make  for 
trying  the  right  at  law,  see  Bell  v.  Hull  and  Selby  Railway  Com- 
pany, ubi  supra;  Cory  v.  Norwich  and  Yurmmith  Railicay 
Company,  3  Hare,  593  ;  Kemp  v.  London  and  Brighton  Railwat/ 
Company,  ubi  supra;  Attorney -General  v.  Eastern  Counties  and 
Northern  and  Eastern  Counties  Railway  Company,  ubi  supra. 

(d)  See  Gordon  v.  Cheltenham  Railway  Company,  5  Beav. 
240;  Cory  v.  Norwich  and  Yarmouth  Railway  Company,  3 
Hare,  593.  See  also  Clarence  Railway  Company  v.  Great  North 
of  England,  Clarence  and  Hartlepool  Junction  Railway  Com- 
pany, 2  Railw.  Cas.  763  ;  Great  North  of  England,  Clarence 
and  Hartlepool  Railwaif  Company  v.  Claretice  Railwaii  Company, 
1  Coll.  507. 

■  (e)  Spencer  v.  The  London  and   Birmingham  Railway   Com- 
pany, 1  Railw.  Cas.  159. 


Remedies  for  Strangers  against  Railway  Comps.  411 

application  for  dealing  with  the  injunction  in  such  a 
manner  as  best  to  reconcile  the  interests  of  both 
parties.  But  before  tlie  court  can  thus  interfere 
with  a  plaintiff's  equitable  right,  evidence  must  be 
adduced  to  show  that  injury  is  likely  to  be  caused  to 
the  company  by  the  postponement  of  their  proceed- 
ings, and  means  suggested  by  which  the  court  can  be 
sure  that  they  shall  not,  in  permitting  the  company 
to  go  on,  subject  the  plaintiff  to  inconvenience  and 
danger.  (/) 

574.  Even  although  there  may  have  been  a  clear 
infraction  of  the  law  on  the  part  of  the  company,  and 
that  without  any  favourable  circumstances,  still,  if 
no  case  of  practical  inconvenience  is  made  out,  the 
court  will  not  necessarily  feel  itself  bound  to  continue 
an  injunction,  which  has  been  granted  ex  parte,  but 
will  exercise  its  discretion  according  to  the  parti- 
cular circumstances  of  the  case,  and  endeavour  to 
do  substantial  justice  to  one  party  without  imposing 
unnecessary  hardships  on  the  other,  especially  in  a 
case  where  the  legal  tribunals  are  open,  {g) 

(/)  Judgment  of  Lord  Chancellor  in  Be'/  v.  Bull  and  Selby 
Railway  Company,  1  Railw.  Cas.  637. 

(g')  Attorney -Genera  I  v.  Eastern  Counties  Railway  Company, 
3  Railw.  Cas.  337  ;  S.  C.  7  Jur.  806,  judgment  of  Vice-Chan- 
cellor.  In  that  case  an  information  was  filed  at  the  relation  of 
the  trustees  of  a  turnpike  road  against  a  railway  company  in 
order  to  compel  them  to  remove  a  temporary  bridge,  which  had 
been  erected  for  the  purpose  of  conveying  spoil  earth  over  the 
road,  or  to  compel  them  to  set  out  a  new  road  ;  and  it  was  held, 
on  motion  to  dissolve  an  injunction  granted  ex  parte,  that  the 
operation  of  the  injunction  should,  on  certain  terms,  be  sus- 
pended for  seven  weeks  or  until  further  order,  no  case  of  prac- 
tical inconvenience  having  been  made  out,  although  there  had 
been  a  clear  infraction  of  the  law. 
T — z  2 


412  Remedies  for  or  against  Railway  Companies. 

575.  Independently  of  the  question  of  merits,  if 
it  subsequently  turn  out  that  an  injunction  has  been 
obtained  by  means  of  misrepresentation  or  conceal- 
ment on  the  part  of  the  complainant,  he  can  have  no 
benefit  of  it ;  but  it  is  liable  to  be  discharged  with 
costs.  (//)  The  application,  however,  for  this  pur- 
pose must  be  made  as  speedily  as  a  party  can  ;  a 
motion  accordingly  for  dissolving  an  injunction  on 
the  above  grounds  cannot  be  supported  after  a  period 
of  several  months  has  elapsed  before  notice  of  the 
motion  is  given,  the  company  having  all  the  time  in 
their  power  the  means  of  knowing  on  what  grounds 
the  injunction  was  granted,  (i)  Neither  will  the 
question,  whether  there  has  been  such  misrepresen- 
tation or  concealment,  be  taken  into  consideration 
on  appeal  from  an  order  made  by  the  court  in  which 
the  injunction  was  granted,  and  by  which  order  the 
injunction  was  continued,  and  the  costs  reserved.  (?) 

576.  A  second  case,  where  a  court  of  equity  is 
accustomed  to  interfere  for  the  purpose  of  relieving 
against  the  acts  of  a  railway  company,  is  where  the 
company  are  endeavouring  to  exercise  the  powers 
given  them  by  their  act  in  violation  of  the  terms  of 
an  arrangement,  upon  the  faith  of  which  they  were 
suffered  to  obtain  those  very  powers.  Suppose,  for 
instance,  that  as  the  price  of  a  party's  withdrawing 
his  opposition  to  the  passing  of  their  act,  the  under- 

(Ji)  Bell  V.  Hull  and  Selby  Railway  Company,  1  Railw.  Cas. 
638;  Semple  v.  London  and  Birmingham  Railway  Company,  1 
Railw.  Cas.  494  ;  lUingworlh  v.  Manchester  and  Leeds  Railway 
Company,  2  Railw.  Cas.  194  ;  Wnrburton  v.  Blackwall  Railway 
Company,  1  Railw.  Cas.  558. 

(i)  Bell  V.  Hull  and  Selby  Railway  Company,  1  Railw.  Cas. 
638. 


Remedies  fur  Strangers  against  Railway  Comps.  413 

takers  agree  with  such  party  to  give  him  a  certain 
price  for  his  property,  or  to  allow  him  a  certain 
amount  of  compensation  for  the  injuries  likely  to 
result  thereto  from  the  construction  of  the  railway, 
or  the  like,  and  that  the  company  on  the  act  passing 
attempt  to  take  possession  of,  or  otherwise  deal 
with,  the  party's  land  under  the  compulsory  powers 
of  such  act,  and  without  fulfilling  the  terms  of  the 
supposed  arrangement,  the  other  party  may  file  his 
bill  to  be  relieved  against  the  company,  and  to  stay 
them  from  proceeding  to  interfere  with  his  property 
otherwise  than  on  the  stipulated  terms,  (k) 

577.  In  a  case  of  this  nature,  a  party  is  in  general 
entitled  to  an  injunction  upon  filing  his  bill ;  though 
he  may  lose  this  right  by  an  express  or  implied  ac- 
quiescence in  the  proceedings  of  the  company ;  as  if 
with  a  knowledge  of  his  alleged  right  he  lies  by, 
and  leads  the  company  by  his  conduct  to  proceed 
upon  an  understanding  that  they  are  at  liberty  to  do 
so  without  being  affected  by  the  prior  agreement.(^) 

578.  The  grounds  by  which  a  court  of  equity  is 
guided  in  administering  the  second  species  of  relief, 
viz.,  that  resting  on  the  nature  of  the  transaction, 
would  seem  to  be  the  same  in  the  case  of  railway 
companies  as  of  ordinary  persons.  Accordingly,  if 
a  plain  case  of  nuisance  be  established  against  a 
company,  a  court  of  equity  would  in  general  grant 
an  injunction  at  once  to  restrain  its  further  conti- 
nuance; as,  for  instance,  where  a  company  depo- 
sited a  quantity  of  clay  on  a  road  leading  to  a  party's 
wharf,  and  thereby  created  a  material  obstruction 

(k)  See  ante,  p.  162,  et  seq.,  and  cases  there  cited. 
(/)  Greehalghv.  Manchester  and  Birmingham  Railway  Com- 
pany, 3  My.  &  Cr.  784. 


414  Remedies  for  or  against  Railway  Companies. 

to  the  entrance  of  the  wharf,  there  being  grounds 
at  the  same  time  for  suspecting  that  the  company 
intended  to  bring  a  much  larger  quantity,  of  which 
that  actually  deposited  constituted  but  a  small  por- 
tion, {m)  So  if  a  railway  company,  in  making  their 
excavations,  were  to  proceed  in  so  careless  a  man- 
ner as  threatened  to  endanger  the  adjoining  pro- 
perty, if  they  were  suflTered  to  proceed,  a  court  of 
equity  would,  it  seems,  interpose  to  restrain  them 
from  going  on.  (?<) 

579.  In  cases  of  such  a  nature  the  injured  party 
has  a  right  to  apply  immediately  for  an  injunction 
ex  parte,  and  is  not  bound  to  wait  and  see  with 
what  degree  of  celerity  or  tardiness  the  cause  of  in- 
jury is  removed,  {o)  Though,  if  such  injunction 
turn  out  to  be  obtained  by  misrepresentation  or  con- 
cealment on  his  part,  he  can  have  no  benefit  of  it ; 
but  it  is  liable  to  be  discharged  with  costs,  (o) 

580.  Where  the  fact  of  the  nuisance  is  not  clearly 
established  upon  the  affidavits,  or  the  legal  right  is 
otherwise  doubtful,  the  court  in  general  is  governed 
by  the  consideration  of  inconvenience,  and  as  this 
preponderates  on  the  one  side  or  the  other,  grants 
or  refuses  the  injunction  accordingly.  If  the  giving 
to  the  one  party  permission  to  do  the  acts  com- 
plained of  would  be  attended  with  irreparable  or 

(m)  Semple  v.  London  and  Birmingham  Railway  Company,  1 
Railw.  Cas.  493  ;  S.C.9  Sim.  209. 

(n)  See  judgment  of  Vice-Chancellor  in  Warburton  v.  Lon- 
don and  Blackwall  liailway  Company,  1  Railw.  Cas.  558.  As 
to  injunction  against  railway  company  to  secure  possession  of 
temporary  easement  upon  their  land,  see  ante,  p.  367,  n.  (g). 

(o)  Semple  v.  London  and  Birmingham  Railway  Company,  1 
Railw.  Cas.  489. 


Remedies  for  Strangers  against  Railwaij  Cumps.  415 

very  serious  mischief  to  tlie  other,  the  injunction  is 
more  commonly  granted,  (p)  But  if  on  the  other 
hand,  there  is  a  balance  of  inconvenience,  or  the  in- 
convenience is  clearly  greater  on  the  side  of  the 
company,  then  as  a  general  rule  the  court  requires 
the  party  to  establish  his  right  at  law  before  grant- 
ing an  injunction,  though  after  the  right  is  thus 
established,  it  would  then  interfere  to  enjoin  any 
further  invasion  thereof,  (q)  This  rule,  requiring 
the  party  in  the  first  instance  to  establish  his  right 
at  law,  applies  more  especially  in  those  cases  where 
the  complainant  himself  has  by  his  delay  prevented 
the  legal  right  being  ascertained  as  it  ought  to  have 
been,  (r)  Although  a  party  cannot  maintain  an  ac- 
tion against  a  company  for  an  alleged  nuisance,  &c., 
still  if  it  be  a  case  where,  as  against  ordinary  per- 
sons, he  is  entitled  to  recover  penalties  de  die  in 

(p)  Judgment  of  Vice-Chancellor  in  Cory  v.  Norwich  aiid 
Yarmnuth  Railway  Company,  3  Hare,  600,  601. 

(9)  Sempley.  London  and  Birmingham  Railway  Company,  1 
Railw.  Cas.  120  ;  Cory  v.  Norwich  and  Yarmouth  Railway 
Company,  3  Hare,  593.  As  to  the  nature  of  the  nuisance  in  the 
former  of  ihe  two  cases,  see  ante,  p.  178.  In  the  latter  case  the 
alleged  wrong  consisted  in  the  railway  company  conveying  pas- 
sengers, &c.  to  and  from  their  terminus,  which  was  within  the 
limits  of  a  ferry  over  the  river  Bure,  by  means  of  a  canal  com- 
municating with  the  river,  across  the  same  from  and  to  Buck 
Quay  in  Great  Yarmouth,  the  effect  of  which  was  to  deprive  the 
plaintiff,  the  owner  of  the  ferry,  of  a  great  portion  of  the  traffic 
over  a  bridge  that  had  been  substituted  by  an  act  of  parliament 
for  the  ancient  ferry,  and  on  which  the  act  empowered  him  to 
take  tolls.  The  affidavits  raised  various  questions  of  fact  as  to 
whether  the  plaintiff  had  a  right  to  the  ferry,  &c.,  and  also  a 
question  of  lav?. 

(r)  See  Semple  v.  London  and  Birmingham  Railway  Com- 
pany, 1  Railw.  Cas.  ubi  supra. 


416     Remedies  for  or  against  Railway  Companies, 

diem  for  the  infringenjent  of  his  right,  a  court  of 
equity  would,  it  seems,  protect  him  by  injunction 
from  such  infringement,  (s)  Or  if  the  case  were  not 
one  in  which  the  court  thought  fit  to  grant  an  in- 
junction at  once,  still  it  would  not  leave  the  party 
simply  to  proceed  by  distress,  in  order  that  his  legal 
right  might  be  tried  by  replevin,  but  would  direct 
an  issue  to  try  such  right,  and  require  the  defendants 
not  to  raise  any  objection  at  law,  on  the  ground  that 
the  alleged  wrong  was  done  by  a  corporation,  (i) 

581.  So  likewise  in  cases  of  trespass  under 
colour  of  title,  it  has  been  laid  down  that  where  the 
mischief  apprehended  is  irreparable,  a  court  of 
equity  will  exercise  its  jurisdiction  to  grant  an 
injunction,  and,  whether  the  mischief  be  irreparable 
or  not,  it  will  by  decree,  if  not  by  order  upon 
motion,  extend  the  jurisdiction  of  preventive  justice 
to  all  cases  of  trespass  in  which  damages  would  be 
an  inadequate  and  uncertain  remedy,  and  the  protec- 
tion of  the  right  in  specie  is  the  only  mode  of 
doing  complete  justice,  (m) 

582.  Of  relief  on  contracts.  Whatever  relief  it  is 
competent  for  a  court  of  equity  to  administer  in 
regard  of  contracts  in  general,  it  may  equally  afford 
upon  a  contract  concluded  by  a  railway  company. 
A  party  therefore  who  complains  of  being  defrauded 

(s)  Cory  V.  Noruich  and  Yarmouth  Railway  Company,  3 
Hare,  593. 

(i)  Cory  V.  Norwich  and  Yarmouth  Railway  Companv,  3 
Hare,  593.  This  supposes  that  the  court  can  see  plainly  what 
the  issue  is. 

(it)  See  judgment  of  Wigram,  Vice-Chancellor,  in  North  Union 
Junction  Railway  Company  v.  Bolton  and  Preston  Railway  Com- 
pany, 3  Railw.  Cas.  345. 


Remedies  for  Strangers  against  Railway  Comps.  417 

or  oppressed  by  a  company  in  regard  of  a  contract 
entered  into  with  them,  may  file  a  bill  for  relief 
against  such  fraud  or  oppression.  So  likewise  a 
bill  lies  against  a  company  for  the  specific  perform- 
ance of  an  agreement  for  the  purchase  of  land, 
&c.,  (x)  or  for  the  taking  of  an  account,  which,  from 
the  character  of  the  transaction,  and  the  nature  of 
the  investigation  which  it  renders  necessary,  the 
machinery  of  a  court  of  common  law  is  clearly  ina- 
dequate to  entertain,  (y)  But  where  a  contract  is  of 
such  a  nature  that  a  court  of  equity  cannot  have 
jurisdiction  over  the  entire  contract  by  way  of  direct- 
ing a  specific  performance,  a  party  cannot  sustain  a 
prayer  for  relief,  which  supposes  an  assumption  by 
the  company  of  such  a  jurisdiction  over  any  part  of 
that  contract.  (?/) 

583.  Next  of  the  parties  to  a  suit  against  the 
company.  The  general  rule  in  equity,  "  that  all 
parties  materially  interested  in  the  subject  of  the 
suit  ought  to  be  made  parties,"  applies  as  much  to  a 
suit  against  a  company  as  to  any  other.  A  party 
cannot  therefore,  it  should  seem,  complain  in  his 
own  individual  right  of  an  alleged  injury  to  the 
navigation  of  a  river  in  which  he  is  interested  in  ex- 
tent perhaps  more  than  others,  but  in  right  only  as 
one  of  the  public,  (z) 

584.  The  rule  does  not  apply,  where  one  party 
has  a  peculiar  and  special  interest  in  the  subject  of 

(a)  See  ante,  and  see  Stnrerv.  Great  Wester7i  Railvxiy  Com- 
pany, 3  Railw.  Cas.  106;  S.  C.  2  Y.  &  Coll,  N.  R.  48. 

(i/)  Ranger  v.  Great  Western  Railway  Company,  1  Railw. 
Cas.  1. 

(s)  Illingworih  v.  Manchester  and  Leeds  Railway  Company, 
2  Railw.  Cas.  209. 


418    Remedies  for  or  against  Railway  Companies. 

the  suit  distinct  from  that  of  any  other  party  ;  but 
in  this  case  such  party  may  complain  in  his  own 
right  of  any  injury  to  that  interest.  One  therefore 
who  suffers  a  special  damage  from  (a)  the  stopping 
up  of  a  public  thoroughfare  by  the  company,  may 
sustain  a  bill  for  relief  without  making  the  attorney- 
general  a  party. 

Upon  a  like  principle,  where  a  party  was  lessee 
of  a  wharf  and  premises  of  which  the  Regent's  Canal 
Company  were  the  proprietors,  (6)  and  had  a  right 
with  other  occupiers  of  adjoining  wharfs  to  the  use 
of  a  road  which  was  the  property  of  the  company ; 
it  was  held  that  he  might  sustain  a  bill  against  a 
railway  company  to  restrain  them  from  obstructing 
the  road  and  thereby  impeding  the  entrance  to  his 
wharf,  and  that  neither  the  canal  company  nor  the 
other  occupiers  need  be  made  parties,  nor  the  plain- 
tiff's assignees,  though  he  was  an  uncertificated 
bankrupt. 

And  where  a  lessor  agrees  with  a  railway  com- 
pany for  the  sale  of  the  demised  premises,  and  is 
subsequently  necessitated  to  file  a  bill  for  a  specific 
performance  of  the  contract  and  an  injunction  against 
the  company,  tlie  tenant  of  the  premises  thus  con- 
tracted to  be  sold  is  not  a  necessary  party,  (c) 

585.  Where  other  parties  besides  the  company 
have  a  substantial  interest  in  the  relief  prayed  by 
the  bill  adverse  to  that  of  the  plaintiff,  it  would  in 

(a)  Spencer  v.  London  and  Birmingham  Railway  Company, 
1  Railw.  Cas.  159. 

(ft)  Semple  v.  London  and  Birmingham  Railway  Company, 
9  Sim.  209  :  S.  C.  1  Railw.  Cas.  480. 

(c)  Robertson  V.  Great  \l  estern  Railway  Company,  1  Railw. 
Cas.  459. 


Remedies  for  Strangers  against  Railway  Comps.  419 

general  be  proper  to  join  them  as  co-defendants,  (c/) 
But  this  cannot  be  taken  to  apply  to  parties  who, 
although  once  connected  with  the  transaction  out  of 
which  the  suit  arises,  have  ceased  to  have  any  sub- 
stantial interest  therein.  For  instance,  where  an 
agreement  is  made  with  the  promoters  of  one  line  of 
railway,  but  is  adopted  by  the  provisional  commit- 
tee of  a  competing  line  that  ultimately  succeeds  ;  in 
seeking  to  give  effect  to  such  agreement  against  the 
company,  (the  representatives  of  the  latter  body,) 
it  would  seem  unnecessary  to  make  the  promoters 
of  the  rejected  line  parties  to  the  bill  for  that  pur- 
pose, (e) 

586.  Where  parties  have  an  interest  in  the  subject 
of  a  suit  on  the  same  side  as  tliat  of  the  plaintiff,  but 
they  refuse  to  be  made  plaintiffs,  they  may  properly 
be  joined  as  co-defendants,  {f) 

587.  The  general  rule,  that  parties  having  no 
interest  in  a  suit  cannot  be  made  parties  to  it,  does 
not  apply  to  a  suit  against  a  company  for  a  disco- 
very, for  in  this  one  or  more  of  the  officers  of  the 
company  may  be  joined  as  co-defendants  ;  and  this, 
though  they  have  no  interest,  and  may  be  examined 
as  witnesses,  (^g) 

588.  Lastly,  as  to  theymmeof  the  bill.  The  bill 
must  rest  the  plaintiff's  claim  for  relief  on  the  right 
grounds,  for  a  party  cannot  have  a  relief  different 

{(I)  See  ante,  p.  376,  n.  {d). 

(e)  Stanley  v.  Chester  and  Birkenhead  Euiiway  Company,  1 
Railw.  Cas.  58,  judgment  of  Vice-Chancellor.i 

(/)  See  Ranger  v.  Great  Wetter n  Railway  Company,  1  Railw. 
Cas.  1. 

(g)  Gibhuns  V.  Waterloo  Bridge  Company,  5  Price,  491  ;  see 
also  ante,  p.  376. 


420  Remedies  for  or  against  Railway  Companies, 

from  the  case  made  out  by  his  bill.  Distinct  and 
separate  matters  ought  not  to  be  joined  together  in 
the  same  bill.  As  for  instance,  where  a  party  enters 
into  several  contracts  with  a  company,  wholly  un- 
connected with  and  independent  of  each  other,  he 
cannot,  it  should  seem,  embody  them  in  one  bill, 
though  on  all  he  may  be  entitled  to  relief  against  the 
company.  But  where  the  several  matters  are  sub- 
stantially connected  together,  either  by  reason  of 
some  natural  dependence  and  relation  between  each 
other,  or  from  the  mode  of  dealing  which  the  parties 
have  adopted  touching  them,  so  that  the  court  of 
equity  (assuming  it  to  have  jurisdiction  at  all)  can 
only  exercise  that  jurisdiction  with  respect  to  all  of 
them  together,  the  bill  is  not  open  to  objection  for 
including  them  all.  (Ji) 

Where  a  party  thus  joins  together  in  one  bill  dis- 
tinct matters,  he  should  show  on  the  face  of  his  bill 
sufficient  grounds  to  justify  his  so  doing,  (/i)  So,  if 
other  parties  beside  the  company  are  made  co-de- 
fendants, it  ought  to  appear  what  their  title  is  to  be 
so  joined,  or  on  what  grounds  it  is  done. 

589.  Of  the  defence  to  a  bill.  In  answer  to  the 
bill  the  company  may  either  contend  that  the  plain- 
tiff's case,  as  it  appears  on  the  face  of  his  bill,  is 
not  such  as  entitles  him  to  the  relief  he  prays  for ; 
or  that  the  bill  itself  is  misconstructed;  or  they  may 
traverse  the  allegations  of  the  bill ;  or  set  up  addi- 
tional facts  showing  that  they  are  justified  by  their 
act  in  pursuing  the  course  they  are  taking. 

{h)  Ranger  v.  Great  Western  Railway  Company,  1  Railvv. 
Cas.  1. 


Remedies  for  Strangers  against  Railway  Comps.  42 1 

III.   Of  the  Criminal  Remedies  against  Railway 
Companies.  (?) 

590.  A  railway  company  are  liable  to  be  pro- 
ceeded against  criminally  for  the  breach  of  any 
public  duty  imposed  on  them  by  the  law.  Thus  an 
indictment  has  been  held  to  lie  against  a  railway 
company  for  disobedience  (A)  to  an  order  of  two 
justices  made  under  the  authority  of  the  company's 
act.  (l)  The  rule  would  seem  to  apply  not  solely 
to  cases  of  nonfeasance  but  of  misfeasance  also,  or 
excess  of  the  powers  of  their  act,  whereby  injury 
results  to  the  public,  {m)  As  for  instance,  to  a 
charge  of  cutting  through  or  otherwise  dealing  with 
a  highway,  in  a  manner  not  authorized  by  their  act, 
and  thereby  obstructing  the  traffic  on  it.  (n)  In 
cases,  however,  of  misfeasance,  the  more  usual  course 
would  rather  seem  to  be  to  prefer  the  indictment 
against  the  individuals  taking  part  in  the  act,  which 
forms  the  ground  of  the  complaint. 

591.  For  felonies  or  for  crimes  involving  personal 
violence,  the  company  are  not  indictable  as  such,  but 

(i)  See  post,  App.  stat.  7  &  8  Vict.  c.  85,  ss.  17,  18. 

(k)  Heg,  V.  Birmingham  and  Gloucester  Railway  Campany,  3 
Railw.  Ca.  157  ;  S.C.3  A.  &  E.  N.  S.  223.  See  also  Rex  v. 
Regent's  Canal  Company,  cited  1  Railw.  Cas.  323. 

(/)  If  the  indictment  is  preferred  at  the  sessions  or  assizes, 
where  the  parties  cannot  appear  by  attorney,  the  proper  course 
is  to  remove  it  into  the  Court  of  Queen's  Bench  by  certiorari, 
and  compel  appearance  by  distress  infinite  ;  Reg.  v.  Birmingham 
and  Gloiiceiter  Railway  Company,  3  A.  &  E.  N.  S.  223. 

(hi)  See  ibid,  and  cases  there  cited. 

(n)  See  Reg.  v.  London  and  Southampton  Railway  Company, 
3  Railw.  Ca.  34,  n.  (u). 


422   Remedies  for  or  against  Railway  Companies. 

only  the  individual  members  ;  (o)  where  therefore  a 
party  meets  his  death  on  a  railway  from  furious 
driving  or  otherwise  under  circumstances  that  show 
such  a  want  of  care  or  attention  in  the  company  or 
their  agents  as  to  constitute  it  manslaughter,  even 
though  the  company  are  in  fault,  they  are  not  in- 
dictable, but  only  those  who  are  conducing  parties 
to  the  accident. 

592.  Where  the  death  is  found  to  be  by  mis- 
chance, then  the  coroner  by  the  jury  is  to  inquire 
of  the  deodand  and  its  value,  and  in  whose  hands. 
How  and  on  what  grounds  an  inquest  so  found  is 
impeachable,  has  been  already  considered,  (p)  If 
however  the  inquest  contains  a  true  statement  of 
the  facts,  and  is  in  other  respects  substantially  good, 
then  the  only  course  for  the  company  is  to  pay  the 
sum  assessed  as  the  value  of  the  deodand,  or  give 
up  the  engine,  &c. 

593.  Where  a  railway  company  do  any  thing  to 
the  obstruction  of  a  highway  without  performing 
the  conditions  on  which  their  power  of  so  doing  is 
given  to  them,  it  would  seem  that  they  are  indict- 
able in  the  common  form  for  so  obstructing  the 
highway,  {q) 

(o)  Hawk.  P.  C.  b.  1,  c.  65,  s.  13;  judgment  of  court  in 
Re^.  V.  Birmingham  and  Gloucester  Railway  Company,  ubi 
supra. 

(p)  See  ante,  p.  364,  etseq. 

(?)  Reg.  V.  Scett,  3  Railw.  Ca.  187  ;  5.  C.  3  A.  &  E.  X.  S. 
543.- 


Remedies  hetweeii  individual  Shareholders.    423 

Part  II. 
Of  Remedies  between  the  individual  Shareholders. 


I.   Of  Remedies  at  Law. 

594.  Where  a  projected  railway  turns  out  to  be  a 
fraud  and  bubble,  a  party  who  is  entrapped  by  the 
projectors  into  becoming  a  subscriber,  and  advanc- 
ing his  money  on  the  faith  of  the  scheme,  may,  it  is 
conceived,  on  its  ultimate  failure  have  an  action  of 
assumpsit  against  the  projectors  to  recover  his 
money.  So  if  afte»-  a  scheme  is  fairly  started,  a  party 
is  entrapped  by  the  fraud  and  artifice  of  any  holder 
of  shares  into  becoming  a  purchaser,  he  may,  it  is 
conceived,  as  soon  as  he  is  aware  of  the  real  facts 
of  the  case,  rescind  the  contract  and  maintain  a  like 
action  for  the  purchase-money,  if  it  is  not  restored 
to  him. 

II.  Of  Remedies  in  Equity. 

595.  Individual  shareholders  may,  on  their  own 
behalf  and  in  support  of  their  separate  rights,  sue 
other  shareholders  against  whom  they  can  establish 
a  liability  on  the  ground  of  a  fraudulent  dealing  with 
their  interests  or  otherwise,  (s) 

596.  And  generally  where  there  are  parties  among 
the  shareholders  having  conflicting  interests  in  a 
particular  subject-matter,  and  relief  is  sought  in 
regard  to  those  interests,  without  reference  to  or  in- 

(s)  Slainbank  v.  Fernley,  9  Sim.  556 ;  Mare  v.  Malachi,  I 
My.  &  Cr.  559. 


424     Remedies  between  individual  Shareholders. 

volving  the  general  interests-  of  the  companj',  the 
shareholders  on  the  one  side  may,  it  is  conceived, 
file  their  bill  against  those  on  the  other  for  the  due 
adjustment  of  those  interests;  or  in  case  of  the  sup- 
porters of  either  interest  being  too  numerous  to  be 
made  parties,  then  some  one  or  more  of  them  may 
be  made  parties  to  the  suit  as  representatives  of  the 
others,  (t) 

597.  And  where  a  company  is  in  such  a  state  of 
disorganization  as  virtually  amounts  to  a  dissolution, 
and  consequently  is  incapable  of  obtaining  redress 
in  its  corporate  character  for  any  injury  to  its  cor- 
porate rights,  it  may  be  competent  for  individual 
shareholders  to  sue  in  their  private  capacities  on 
behalf  of  the  company,  (u)  But  to  sustain  such  a 
suit,  the  possibility  of  the  company  obtaining  redress 
on  its  own  behalf  must  be  excluded  by  the  allega- 
tions of  the  bill.  («) 

(t)  Richardson  v.  Hastings,  22  Law  Journ.  Ch.  1 42  ;  6'.  C. 
7  Beav.  323  ;  Deeks  v.  Stanhope,  22  L.  J.  Chan.  453  ;  Long  v. 
Yonge,  2  Sim.  369,  judgment  of  Vice- Chancellor. 

(«)  Foss  V.  Harbotlle,  2  Hare,  461. 


APPENDIX  I. 

STATUTES. 


1  Vict.  c.  83. 

An  Act  to  compel  Clerks  of  the  Peace/or  Counties  and 
other  Persons  to  take  the  Custody  of  such  Docu- 
ments as  shall  be  directed  to  be  deposited  with  them 
under  the  Standing  Orders  of  either  House  of  Par- 
liament. [17th  July,  1837.] 

Whereas  the  houses  of  parliament  are  in  the  habit  of 
requiring  that,  previous  to  the  introduction  of  any  bill  into 
Parliament  for  making  certain  bridges,  turnpike  roads, 
cuts,  canals,  reservoirs,  aqueducts,  waterworks,  navigations, 
tunnels,  archways,  railways,  piers,  ports,  harbours,  ferries, 
docks,  and  other  works,  to  be  made  under  the  authority  of 
Parliament,  certain  maps  or  plans  and  sections,  and  books 
and  writings,  or  extracts  or  copies  of  or  from  certain 
maps,  plans  or  sections,  books,  and  writings,  shall 
be  deposited  in  the  office  of  the  clerk  of  the  peace 
for  every  county,  riding,  or  division  in  England  or 
Ireland,  or  in  the  office  of  the  sheriff  clerk  of  every 
county  in  Scotland,  in  which  such  work  is  proposed  to  be 
made,  and  also  with  the  parish  clerk  of  every  parish  in 
England,  the  schoolmaster  of  every  parish  of  Scotland,  or 
in  royal  burghs  with  the  town  clerk,  and  the  postmaster  of 
the  post  town  in  or  nearest  to  every  parish  in  Ireland,  in 
which  such  work  is  intended  to  be  made,  and  with  other 
persons:  And  whereas  it  is  expedient  that  such  maps, 
plans,  sections,  books,  writings,  and  copies  or  extracts  of 
and  from  the  same,  should  be  received  by  the  said  clerks 
of  the  peace,  sheriff  clerks,  pai'ish  clerks,  schoolmasters, 
town  clerks,  postmasters,  and  other  persons,  and  should  re- 
main in  their  custody  for  the  purposes  hereinafter  men- 
tioned: Be  it  therefore  enacted  by  the  Queen's  most  excel- 

A  A 


ii  Appendix — Statutes. 

lent  Majesty,  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal,  and  commons,  in  this  pre- 
sent parliament  assembled,  and  by  the  authority  of  the 
Clerks  of  the  same,   that  whenever  either  of  the  houses  of  parliament 
nfceive  the  °  shall  by  its  standing  orders,  already  made  or  hereafter  to 
documents    be  made,  require  that  any  such  maps,  plans,  sections,  books, 
herein  men-  qj.  writings,  or  extracts  or  copies  of  the  same,  or  any  of 
retain  them    them,  shall  be  deposited  as  aforesaid,  such  maps,  plans, 
for  the  pur-   sections,  books,  writings,  copies,  and  extracts  shall  be  re- 
re°cted  by       ceived  by  and  shall  remain  with  the  clerks  of  the  peace, 
the  standing  sheriff  clerks,  parish  clerks,   schoolmasters,  town   clerks, 
orders  ot_the  postmasters,  and  other  persons  with  whom  the  same  shall 
parliament,    be  directed  by  such  standing  orders  to  be  deposited,  and 
they  are  hereby  respectively  directed  to  receive  and  to  re- 
tain the  custody  of  all  such  documents  and  writings  so  di- 
rected to  be  deposited  with  them  respectively,  in  the  man- 
ner, and  for  the  purposes,  and  under  the  rules  and  regu- 
lations concerning  the  same  respectively  directed  by  such 
standing  orders,  and  shall  make  such  memorials  and  en- 
dorsements on  and  give  such  acknowledgments  and  re- 
ceipts  in   respect   of  the  same  respectively  as   shall  be 
thereby  directed. 
Clerks  of  the      H-  And  be  it  further  enacted,  that  all  persons  interested 
peace,  &c.  to  shall  have  liberty  to,  and  the  said  clerks  of  the  peace,  she- 
documents     ^^^  clerks,  parish  clerks,  schoolmasters,  town  clerks,  and 
to  be  in-       postmasters,  and  every  of  them,  are  and  is  hereby  required, 
spected  or     ^j.  ^|j  reasonable  hours  of  the  dav,  to  permit  all  persons  in- 

C0P16Q    DV  .  .  V   '  A  XT 

persons  in-    terested  to  inspect  during  a  reasonable  time  and  make  ex- 
terested.        tracts  from  or  copies  of  the  said  maps,  plans,  sections, 
books,  writings,  extracts  and  copies  of  or  from  the  same, 
so  deposited  with  them  respectively,  on  payment  by  each 
person  to  the  clerk  of  the  peace,  sheriiF  clerk,  clerk  of  the 
parish,  schoolmaster,  town  clerk,  or  postmaster  having  the 
custody  of  any  such  map,  plan,  section,  book,  writing,  ex- 
tract, or  copy,  one  shilling  for  every  such  inspection,  and 
the  further  sum  of  one  shilling  for  every  hour  during  which 
such  inspection  shall  continue  after  the  first  hour,  and  after 
the  rate  of  sixpence  for  every  one  hundred  words  copied 
therefrom. 
Clerks  of  the      HI.  And  be  it  further  enacted,   that  in  case  any  clerk 
peace,  &c.     of  the  peace,  sheriff  clerk,  parish  clerk,  schoolmaster,  town 
omission  to    clerk,  postmaster,  or  other  person  shall  in  any  matter  or 
comply  with  thing  refuse  or  neglect  to  comply  with  any  of  the  provisions 
s^on^'^oMhis  hereinbefore   contained,  every  clerk  of  the  peace,  sheriff 
act, liable  to  clerk,  parish  clerk,  schoolmaster,  town  clerk,  postmaster, 
the  penalty    or  other  person  shall  for  every  such  offence  forfeit  and  pay 


1  Vict.  c.  83.  iii 

any  sum  not  exceeding  the  sum  of  five  pounds  ;  and  every  "^  ^^  to  be 
such  penalty  shall,  upon  proof  of  the  offence  before  any  a^summary 
justice  of  the  peace  for  the  county  within  which  such  of-  way. 
fence  shall  be  committed,  or  by  the  confession  of  the  party 
offending,  or  by  the  oath  of  any  credible  witness,  be  levied 
and  recovered,  together  with  the  costs  of  the  proceedings 
for  the  recovery  thereof,  by  distress  and  sale  of  the  goods 
and  effects  of  the  party  offending,  by  warrant  under  the 
hand  of  such  justice,  which  warrant  such  justice  is  hereby 
empowered  to  grant,  and  shall  be  paid  to  the  person  or 
persons  making  such  complaint;  and  it  shall  be  lawful  for 
any  such  justice  of  the  peace  to  whom  any  complaint  shall  be 
made  of  any  offence  committed  against  this  act  to  summon 
the  party  complained  of  before  him,  and  on  such  summons 
to  hear  and  determine  the  matter  of  such  complaint  in  a 
summary  way,  and  on  proof  of  the  offence  to  convict  the 
offender,  and  to  adjudge  him  to  pay  the  penalty  or  forfei- 
ture incurred,  and  to  proceed  to  recover  the  same,  although 
no  information  in  writing  or  in  print  shall  have  been  ex- 
hibited or  taken  by  or  before  such  justice  ;  and  all  such 
proceedings  by  summons  without  information  shall  be  as 
good,  valid,  and  effectual  to  all  intents  and  purposes  as  if 
an  information  in  writing  had  been  exhibited. 


A  A  2 


Appendix — Statutes. 


1  &  2  Vict.  c.  98. 


An  Act  to  provide  for  the  Conveyance  of  the  Mails  by 
Railways.  [14th  August,  1838.] 

Whereas  it  is  expedient  that  provision  should  be  made 
by  law  for  the  conveyance  of  the  mails  by  railways  at  a 
reasonable  rate  of  charge  to  the  public  :  Be  it  enacted  by 
the  Queen's  most  excellent  Majesty,  by  and  with  the  ad- 
vice and  consent  of  the  lords  spiritual  and  temporal,  and 
commons,  in  this  present  parliament  assembled,  and  by  the 
Postmaster-  authority  of  the  same,  that  in  all  cases  of  raihva3-s  already 
require  raU^  uiade  or  in  progress  or  to  be   hereafter  made  within  the 
way  compa-   United  Kingdom,  b}'  which  passengers  or  goods  shall  be 

nies  to  con-    conveyed  in  or  upon  carriages  drawn  or  impelled  by  the 
vevthe  ■'   r    .  ^  ,  ,  °  ^.  ,    ,.  ^  •'• 

mails.  power  01  steam,  or  by  any  locomotive  or  stationary  engines, 

or  animal  or  other  power  whatever,  it  shall  be  lawful  for 
the  postmaster  general,   by  notice  in  writing  under  his 
hand  delivered  to  the  company  of  proprietors  of  any  such 
railway,  to  require  that  the  mails  or  post  letter  bags  shall 
from  and  after  the  day  to  be  named  in  any  such  notice 
(being  not  less  than  twenty  eight  days  from  the  delivery 
thereof)  be  conveyed  and  forwarded  by  such  company  on 
their  railway,  either  by  the  ordinary  trains   of  carnages, 
or  by  special  trains,  as  need  may  be,  at  such  hours  or  times 
in  the  day  or  night  as  the  postmaster-general  shall  direct, 
together  with  the  guards  appointed  and  employed  by  the 
postmaster-general  in  charge  thereof,  and  any  other  officers 
of  the  post  office  ;  and  thereupon  the  said  company  shall, 
from  and  after  the  day  to  be  named  in  such  notice,  at  their 
own  costs,  provide  sufficient  carriages  and  engines  on  such 
railways  for  the  conveyance  of  such  mails  and  post  letter 
bags  to  the  satisfaction  of  the  postmaster  general,  and  re- 
ceive, take  up,  carry,  and  convey,  by  such  ordinary  or  spe- 
cial trains  of  carriages  or  otherwise,  as  need  may  be,  all 
such  mails  or  post  letter  bags  as  shall  for  that  purpose  be 
tendered  to   them,  or  any  of  their  officers,  servants,  or 
agents,  by  any  officer  of  the  post  office,  and  also  receive, 
take  up,  carry,  and  convey,  in  and  upon  the  carnages  car- 
rying such  mails  or  post  "letter  bags,  the  guards  in  charge 
thereof,  and  any  other  officers  of  the  post  office,  and  shall 
receive,   take  up,  deliver,   and  leave  such  mails  or  post 


1  8i  2  Vict.  c.  98.  V 

letter  bags,  guards,  and  officers  at  such  places  in  the  line  of 
such  railway,  on  such  days,  at  such  hours  or  times  in  the 
day  or  night,  and  subject  to  all  such  reasonable  regulations 
and  restrictions  as  to  speed  of  travelling,  places,  times,  and 
duration  of  stoppages,  and  times  of  arrival,  as  the  post- 
master-general shall  in  that  behalf  from  time  to  time  order 
or  dii'ect :  Provided  always,  that  the  rate  of  speed  to  be  re- 
quired shall  in  no  case  exceed  the  maximum  rate  of  speed 
prescribed  by  the  directors  of  such  railway  or  railways  for 
the  conveyance  of  passengers  by  their  first  class  trains ; 
but  that  no  alteration  in  the  rate  of  speed  of  any  train  by 
which  the  mails  shall  be  conveyed  shall  be  made  until  six 
calendar  months  previous  notice  shall  be  given  to  the  post- 
master-general of  any  such  intended  alteration. 

II.  And  be  it  enacted,  that  it  shall  be  lawful  for    the  ^^J^j^^^'^^J- 
postmaster-general  (if  he  shall  see  fit)  to  require  that  the  be  applied 
whole  of  the  inside  of  any  carriage  used  on  any  railway  for  excui=iveiy 
the  conveyance  of  mails  or  post  letter  bags  shall  be  exclu-  veyance!^"" 
sively  appropriated  for  the  purpose  of  carrying  the  mails. 

III.  And  be  it  enacted,  that  the  company  of  proprietors  Railway 

c  1         -1  1     II  1     •  •       1    ^      1      1-     company,  It 

01  any  such  railway  shall,  on  being  required  so  to  do  by  required,  tu 

the  postmaster-general,  provide  and  furnish  (in  addition  provide 
to  the  carriages  aforesaid)  a  separate  carriage  or  separate  carriage  for 
carriages,  fitted  up  as  the  postmaster-general,  or  such  per-  sorting  let- 
son  as  he  shall  nominate  in  that  behalf,  shall  direct,  for  the  '^'^^• 
purpose  of  sorting  letters  therein,  and  shall  forward  the 
same  carriage  or  carriages  by  their  railway,  at  such  hours 
or  times,  and  subject  to  all  such  reasonable  regulations  as 
aforesaid,  as  the  postmaster-general  shall  in  that  behalf 
order  or  direct ;  and  such  company  of  proprietors  shall 
receive,  take  up,  carry,  and  convey  in  any  such  last-men- 
tioned carriage  or  carriages  all  such  post  letter  bags  and 
oflRcers  of  the  post  office  as  the  postmaster-general  shall 
reasonably  require,  and  shall  deliver  and  leave  any  post 
letter  bags  and  officers  of  the  post  office  at  such  places  on 
the  line  of  the  railway  as  the  postmaster-general  shall  in 
that  behalf  from  time  to  time  reasonably  order  and  direct. 

IV.  And  be  it  enacted,  that  in  case  the  postmaster-ge-  Postmaster- 
neral  shall  at  any  time  be  desirous  of  sending  by  any  such  %^^l^yaa\\s 
railway  any  of  her  Majesty's  mail  coaches  or  mail  carts,  to  be  tarried 
with  the  mails  or  post  letter  bags  and  guards  thereof,  and  ?"  >^ailway 
carriages  for  sorting  letters,   with  any  officers  of  the  post  coaches,  in 
office  therein,   instead  of  sending  the  said  mails  or  post  lieu  of  com- 
letter  bags,  guaixls,  and  officers  of  the  post  office  by  car-  ^j'^ges*  '^*'^" 
riages  to  be  provided  by  such  railway  company  as  afore- 
said, then  and  in  any  such  case  sucli  railway  company 


Railway 
companies 
to  be  subject 
to  directions 
of  post  office 
respecting 
conveyance 
of  mails. 


Remunera- 
tion to  rail- 
way com- 
panies for 
conveyance 
of  fnails. 


Appendix — Statutes . 

shall,  at  the  request  of  the  postmaster-general,  signified  by 
such  notice  as  aforesaid,  cause  such  mail  coaches  or  mail 
carts,  with  the  mails  or  post  letter  bags  and  guards  thereof, 
and  carriages  for  sorting  letters,  with  any  officers  of  the 
post  office  therein,  to  be  conveyed  by  the  usual  or  proper 
trucks  or  frames  on  their  said  railway,  subject  to  such  re- 
gulations and  restrictions  of  the  postmaster-general  as 
hereinbefore  mentioned. 

V.  And  be  it  enacted,  that  for  the  greater  security  of 
the  mails  or  post  letter  bags  so  to  be  carried  or  conveyed 
by  railways,  the  company  of  proprietors  of  such  respective 
railways  along  which  such  maUs  or  post  letter  bags,  mail 
coaches,  or  carts  and  carriages  for  sorting  letters  shall  be 
so  required  by  the  postmaster-general  to  be  conveyed,  and 
their  respective  officers,  servants,  and  agents,  shall  obey, 
observe,  and  perform  all  such  reasonable  regulations  re- 
specting the  conveyance,  delivering,  and  leaving  of  such 
mails  and  post  letter  bags,  guards,  and  officers  of  the  post 
office,  mail  coaches,  or  carts  and  carriages,  on  any  such 
railways,  or  on  the  line  thereof,  as  the  postmaster  general, 
or  such  officer  of  the  post  office  as  he  shall  nominate  in 
that  behalf,  shall  in  his  discretion  from  time  to  time  give 
or  make  :  Provided  always,  that  it  shall  not  be  lawful  for 
any  officer  or  servant  of  the  post  office  to  interfere  with  or 
give  orders  to  the  engineer  or  other  person  having  the 
charge  of  any  engine  upon  any  railway  along  which  mails 
or  post  letter  bags  shall  be  conveyed ;  but  if  any  cause  of 
complaint  shall  arise  the  same  shall  be  stated  to  the  con- 
ductor or  other  officer  of  the  railway  company  having  the 
charge  of  the  train,  or  to  the  chief  officer  at  any  station 
upon  the  railway;  and  in  case  of  any  default  or  neglect  on 
the  part  of  any  officers  or  servants  of  the  railway  company 
to  comply  with  any  of  the  regulations  of  the  postmaster- 
general  or  other  officer  of  the  post  office  so  to  be  nomi- 
nated as  aforesaid  the  railway  company  shall  be  wholly  re- 
sponsible for  the  same. 

VI.  And  be  it  enacted,  that  every  company  of  proprie- 
tors of  any  railway  along  which  such  mails  or  post  letter 
bags,  mail  coaches,  carts,  or  carriages  shall  be  so  required 
by  the  postmaster-general  to  be  conveyed,  shall  be  entitled 
to  such  reasonable  remuneration  to  be  paid  by  the  post- 
master-general to  any  such  company  of  proprietors  for  the 
conveyance  of  such  mails,  post  letter  bags,  mail  guards, 
and  other  officers  of  the  post  office,  mail  coaches,  carts,  and 
carriages,  in  manner  required  by  such  postmaster-general, 
or  by  such  officer  of  the  post  office  as  he  shall  in  that  be- 


1  8i  2  Vict.  c.  98.  vi 

half  nominate  as  aforesaid,  as  shall  (either  prior  to  or  after 
the  commencement  of  such  service)  be  fixed  and  agreed  on 
between  the  postmaster-general  and  such  company  of  pro- 
prietors, or  in  case  of  ditference  of  opinion  between  them 
then  as  shall  be  determined  by  arbitration  as  hereinafter 
provided,  but  so  that  the  services  which  may  be  required 
by  the  postmaster-general,  or  by  such  officer  of  the  post 
office  as  he  in  that  behalf  shall  nominate  as  aforesaid,  to  be 
performed  by  any  such  company  of  proprietors,  be  not 
suspended,  postponed,  or  deferred  by  reason  of  such  remu- 
neration not  having  been  then  fixed  or  agreed  on  between  the 
said  postmaster-general  and  such  company  of  proprietors, 
or  by  reason  of  the  award  on  any  reference  to  arbitration 
to  determine  the  remuneration  not  having  been  then 
made. 

VII.   And  be   it  enacted,   that   notwithstanding  any  Agreements 
agreement  entered  into  between  the  postmaster-general  and  i^^'ween 

°  ,  1         1  T  1    postmaster- 

any  sucli  company,  or  any  award  to  be  made  on  any  such  general  and 
reference  as  aforesaid,  fixing  the  amount  of  remuneration  railway com- 
to  be  paid  to  such  company  for  any  services  to  be  rendered  amount  of 
by  them  as  aforesaid,  it  shall  be  lawful  and  competent  to  remunera- 
and  for  the  postmaster-general,  by  notice  in  writing,  to  re-  t'o°.  &c. 
quire,  from  and  after  the  day  to  be  named  in  any  such  altered, 
notice,  not  being  less  than  twenty-eight  days  from  the  de- 
livery thereof,  any  addition  to  be  made  to  the  services  in 
respect  of  which  such  agreement  shall  be  entered  into  or 
award  made ;  and  in  any  such  case,  and  also  in  case  of  a 
discontinuance  of  any  part  of  such  services  as  hereinafter 
provided,  a  fresh  agreement  shall  be  entered  into  between 
the  postmaster-general  and  such  company,  regulating  the 
future  amount  of  remuneration  to  be  paid  by  the  postmaster- 
general  to  such  company  for  such  increased  or  diminished 
services,  as  the  case  may  be ;  or  if  the  parties  cannot  agree 
on  such  amount  the  same  shall  be  referred  to  arbitration  in 
like  manner  as  hereinbefore  is  mentioned  and  hereinafter 
provided  as  to  any  original  agreement;  and  such  arbi- 
trators shall  have  power  to  award  any  compensation  they 
may  consider  reasonable  to  be  paid  to  any  railway  company 
for  any  loss  that  may  have  been  occasioned  to  them  by 
the  discontinuance  or  alteration  of  the  services  jireviously 
agreed  to  be  performed  by  them  by  any  train  or  carriage 
specially  required  by  the  postmaster-general  to   be  for- 
warded for  the  conveyance  of  tlie  mails,  but  so  that  never- 
theless such  increased  or  diminislied  services  shall  not  be 
suspended,  postponed,  or  deferred  by  reason  of  the  amount 
of  such  increased  or  diminished  remuneration  not  having 


Postmaster, 
general  may 
terminate 
services  of 
railway 
companies 
on  notice ; 


or  may 
terminate 
services  of 
railway  com- 
panies with- 
out notice, 
subject  to 
certain  con- 
ditions. 


Royal  arms 
to  be  painted 
on  engines 
or  carriages 
provided  for 
the  service 
of  the  post 
office. 


Appendix — Statutes. 

been  then  fixed  or  agreed  on  between  the  postmaster-ge- 
neral and  such  company  of  proprietors,  or  by  reason  of 
the  award  on  any  reference  to  arbitration  to  determine  the 
amount  of  such  increased  or  diminished  remuneration  not 
having  been  then  made. 

VIII.  And  be  it  enacted,  that  it  shall  be  lawful  for  the 
postmaster-general  and  he  is  hereby  authorized,  at  any  time 
during  the  continuance  of  the  services  of  any  company  of 
proprietors  as  aforesaid,  to  give  to  such  company,  by  ^vrit- 
ing  under  his  hand,  six  calendar  months  preNaous  notice 
that  such  services  or  any  part  thereof  shall  cease  and  de- 
termine ;  and  thereupon,  at  the  expiration  of  such  six  ca- 
lendar months  notice,  the  said  services,  or  such  part 
thereof  as  aforesaid,  and  the  remuneration  for  the  same, 
shall  cease  and  determine. 

IX.  And  be  it  enacted,  that  it  shall  be  lawful  for  the 
postmaster-general  at  any  time  during  the  continuance  of 
the  services  of  any  company  of  proprietors  as  aforesaid, 
by  notice  in  writing  under  his  hand,  absolutely  to  deter- 
mine and  put  an  end  to  the  same  or  any  part  thereof, 
without  giving  any  previous  notice,  or  on  giving  any  no- 
tice less  than  six  calendar  months  in  respect  thereof,  and 
thereupon  the  said  services  shall  cease  and  determine  ac- 
cordingly :  Provided  nevertheless,  that  in  case  the  post- 
master-general shall,  without  giving  six  calendar  months 
notice  as  aforesaid,  at  any  time  determine  the  services  to 
be  required  by  the  postmaster-general  of  any  company  of 
proprietors,  or  any  part  of  such  services,  without  any  cause 
whatever,  or  for  any  cause  other  than  the  default  by  such 
company  of  proprietors  in  the  performance  of  any  of  the 
services  to  be  required  of  them  by  the  postmaster-general, 
or  the  breach  by  such  company  of  proprietors  of  any  of 
their  engagements  with  the  postmaster-general,  then  and 
in  any  such  case  the  postmaster-general  shall  make  to  such 
company  a  full  and  fair  compensation  for  all  loss  thereby 
occasioned,  the  amount  whereof  in  case  the  parties  differ 
about  the  same  shall  be  ascertained  by  arbitration  as  here- 
inafter mentioned. 

X.  And  be  it  enacted,  that  on  all  carriages  to  be  pro- 
vided for  the  service  of  the  post  office  on  any  such  railway 
there  shall  on  the  outside  be  painted  the  royal  arms,  in 
lieu  of  the  name  of  the  owner  and  of  the  number  of  the 
carriage,  and  of  all  other  requisites,  if  any,  prescribed  by 
law  in  respect  of  carriages  passing  on  any  such  railway  ; 
but  the  want  of  such  royal  arms  on  any  carriage  belonging 
to  or  used  by  the  post  office  shall  not  form  an  objection  to 


I  8f  2  Vict.  c.  98.  b 

such  carriage  running  on  any  railway,  anytliing  to  the 
contrary  notwithstanding. 

XI.  And  be  it  enacted,   that  it  shall  not  be  competent  Bye  law* 
or  lawful  to  or  for  the  company  of  proprietors  of  any  rail-  "gnf  a^f/g 
way  to  make  any  bye  laws,   orders,   rules,   or  regulations  not  to  be 
which  shall  militate  against  or  be  contraiy  or  repugnant  to  repugnant 
any  of  the  enactments  herein  contained ;  and  that  if  any  o'f  at"!"*'°" 
company  of  proprietors  shall  make  or  shall  have  made  any 

such  bye  laws,  orders,  I'ules,  or  regulations,  either  prior  or 
subsequently  to  the  postmaster-general  signifying  to  the 
said  company  his  intention  that  the  mails  or  post  letter 
bags,  mail  coaches,  carts,  or  carriages  shall  be  conveyed  by 
such  railway,  all  such  bye  laws,  orders,  rules,  and  regula- 
tions, so  far  as  they  shall  militate  against  or  be  contrary 
or  repugnant  to  any  of  the  enactments  herein  contained, 
shall  be  and  be  deemed  absolutely  void  and  of  no  effect, 
in  like  manner  as  if  such  bye  laws,  orders,  rules,  or  regu- 
lations had  never  been  made  or  passed,  anything  to  the 
contrary  in  anywise  notwithstanding. 

XII.  And  be  it  enacted,  that  if  the  company  of  pro-  Penalty  fur 

prietors  of  any  railway,  or  any  of  their  respective  officers,  ■''■*'"■*■"?  o"" 
"^  1     11       c  1  neglecting, 

servants,  or  agents,  shall  retuse  or  neglect  to  carry  or  con-  to  convey 
vey  any  mails  or  post  letter  bags,  when  tendered  to  them  mails, 
for  such  purpose   by  the  postmaster-general  or  any  officer 
of  the  post  office,  or  shall  refuse  to  carry  oh  their  railway 
any  mail  coaches,  carts,  or  carriages  as  hereinbefore  pro- 
vided, when  so  required  by  the  postmaster-general,  or  shall 
refuse  or  neglect  to  receive,  take  up,  deliver,  and  leave  any 
such  mails  or  post  letter  bags,  mail  guards,  or  other  officers 
of  the  post  office,  mail  coaches,  carts,  or  carriages,  at  such 
places,  at  such  times,  on  such  days,  and  subject  to  such  re- 
gulations and  restrictions  as  to  speed  of  travelling,  places, 
times,  and  duration  of  stoppages,  as  the  postmaster-general 
shall  from  time  to  time  reasonably  direct  or  appoint,  as 
hereinbefore  provided,  or  shall  not  obey,  observe,  and  per- 
form all  such  regulations  respecting  the  conveyance  of  the 
mails  and  post  letter  bags,   mail  coaches,  carts,  and  car- 
riages on  any  such  railways  as  the  postmaster-general,  or 
such  officer  of  the  post  office  as  he  shall  nominate  in  that 
behalf,  shall  make  for  the  purposes  aforesaid,  then  and  in 
any  such  case  the  company  of  proprietors  who,  or  whose 
officer,  servant,  or  agent,  shall  so  offend  in  the  premises, 
shall  for  every  such  offence  forfeit  and  pay  a  sum  not  ex- 
ceeding twenty  pounds ;  provided  nevertheless,   that  the 
payment  of  or  liability  to  such  penalty  shall  not  in  any 
manner  lessen  or  affect  the  liability  of  any  such  company 

A  A  5 


X  Appendix — Statutes. 

under  any  bond  which  may  have  been  given  by  them 
under  the  provisions  hereinafter  contained. 
Postmaster-  XIII.  And  be  it  enacted,  that  it  shall  be  lawful  for  the 
general  may  postmaster  general,  if  he  shall  so  think  fit,  to  require  the 
way  cumpa-  company  of  proprietors  of  any  railway  already  made  or  in 
Hies  to  give  progress  or  to  be  hereafter  made  within  the  united  kingdom 
bond"'^  ^^  *■"  S^^^  security  by  bond  to  her  Majesty,  her  heirs  and  suc- 
cessors, conditioned  to  be  void  if  such  company  shall  from 
time  to  time  carry  or  convey,  or  cause  to  be  carried  or  con- 
veyed, all  such  mails  or  post  letter  bags,  mail  guards,  and 
other  officers  of  the  post  office,  mail  coaches,  carts,  and 
carriages  in  manner  hereinbefore  mentioned,  when  there- 
imto  required  by  the  postmaster-general,  or  any  officer  of 
the  post  office  duly  authorized  for  that  purpose,  and  shall 
receive,  take  up,  deliver,  and  leave  all  such  mails  or  post 
letter  bags,  guards  and  officers,  mail  coaches,  cai;ts,  and 
carriages,  at  such  places,  at  such  times,  on  such  days,  and 
subject  to  such  regulations  and  restrictions  as  to  speed  of 
travelling,  places,  times,  and  duration  of  stoppages,  as  here- 
inbefore mentioned,  and  shall  obey,  observe,  and  perform 
all  such  regulations  respecting  the  same  as  the  postmaster- 
general  shall  reasonably  make,  and  shaD  well  and  truly 
do  and  perform,  and  cause  to  be  done  and  performed,  all 
such  other  acts,  matters,  and  things  as  by  this  act  are  re- 
quired or  directed  to  be  done  or  performed  by  or  on  the 
part  or  behalf  of  such  company,  their  officers,  servants, 
and  agents ;  and  every  such  bond  shall  be  taken  in  such 
sum  and  in  such  form  as  the  postmaster-general  shall 
think  proper ;  and  every  such  security  shall  be  renewed 
from  time  to  time  whenever  and  so  often  as  such  bond 
shall  be  forfeited,  and  also  whenever  and  so  often  as  the 
postmaster-general  shall  in  his  discretion  require  the  same 
to  be  renewed  ;  and  if  any  company  of  proprietors  of  any 
such  railway  as  aforesaid  shall,  when  so  required  as  afore- 
said, refuse  or  neglect,  for  the  space  of  one  calendar  month 
next  after  the  delivery  of  any  notice  for  such  purpose  to 
them  given  by  or  from  the  postmaster-general,  to  execute 
to  her  Majesty,  her  heirs  and  successors,  such  bond  to  the 
eiFect  and  in  manner  aforesaid,  or  shall  at  any  time  refuse 
or  neglect  to  renew  such  bond  whenever  and  so  often  as 
the  same  shall  by  or  in  pursuance  of  this  act  be  required  to 
be  renewed,  such  company  of  proprietors  shall  forfeit  one 
hundred  pounds  for  every  day  during  the  period  for  which 
there  shall  be  any  refusal,  neglect,  or  default  to  give  or  re- 
new such  security  as  aforesaid,  after  the  expiration  of  the 
said  one  calendar  month. 


1  S(  2  Vict.  c.  98.  xi 

XIV.  Provided  always,  and  be  it   enacted,  that  in  all  Lessees  of 
cases  in  which  any  railway  or  part  of  a  railway  may  pre-  bei'iuTa'bodv 
vious  to  the  passing  of  this  act  have  been  demised  or  let  corporate  or 
by  the  company  of  proprietors  thereof,  the  body  coi-porate  company 
or  company,  or  other  persons  to  whom  the  same  shall  have  required  to 
been  so  demised  or  let,  their  successors,  executors,  adminis-  give  security 
trators,  or  assigns,  shall  dui'ing  the  continuance  of  such  ajj^yg"*^ 
lease  be  liable  to  all  the  provisions  of  this  act  for  or  in  i-e-  ^ei.ooo. 
spect  of  such  railway  or  part  of  a  railway,  in  lieu  of  such 
company  of  proprietors,  but  so  that  such  lessees  (not  being 
a  body  corporate  or  company),  their  executors,  adminis- 
trators, or  assigns,  shall  not  be  required  in  respect  of  any 
such  railway  or  part  of  a  railway  to  give  security  under 
the  foregoing  enactment  to  any  amount  in  any  one  bond 
exceeding  the  sum  of  one  thousand  pounds,  and  shall  not 
in  any  one  year  be  liable  in  damages  to  be  recovered  upon 
any  bonds  which  they  may  have  given  to  any  amount 
exceeding  the  sum  of  one  thousand  pounds  and  costs  of 
suit. 

XV.  And  be  it  enacted,  that  all  notices  under  the  pro-  Service  of 
visions  of  this  act  by  or  on  behalf  of  the  postmaster-general  notices, 
to  any  company  of  proprietors  of  any  railway  as  aforesaid 

shall  be  considered  as  duly  served  on  any  company  of  pro- 
prietors in  case  the  same  shall  be  given  or  delivered  to  any 
one  or  more  of  the  directors  of  such  company,  or  to  the 
secretary  or  clerk  of  such  company,  or  be  left  at  any 
station  belonging  to  such  company. 

XVI.  And  be  it  enacted,   that  in  all  cases  in  which  the  For  settling 
postmaster-general  and  any  company  of  proprietors  of  any  differences 
railway  shall  not  be  able  to  agree  on  the  amount  of  remu-  postmaster- 
neration  or  compensation  to  be  paid  by  the  postmaster-  general  and 
general  to  such  company  of  proprietors  for  any  services  '^^^"'anies 
performed  or  to  be  performed  by  them  as  hereinbefore  in  certain 
mentioned,  the  same  shall  be  referred  to  the  award  of  two  cases, 
persons,  one  to  be  named  by  the  postmaster-general,  and 

the  other  by  such  company ;  and  if  such  two  pei-sons  can- 
not agree  on  the  amount  of  such  remuneration  or  compen- 
sation, then  to  the  umpirage  of  some  thii'd  person,  to  be 
appointed  by  such  two  first-named  persons  previously  to 
their  entering  upon  the  inquiry ;  and  the  said  award  or 
umpirage,  as  the  case  may  be,  shall  be  binding  and  con- 
clusive on  the  said  parties,  and  their  respective  successors 
and  assigns. 

XVII.  And  be  it  enacted,  that  after  any  contract  en-  Railroad 
tered  into  or  award  made  under  the  authority  of  this  act  companies 
shall  have  continued  in  operation  for  a  period  of  three  tracts  have 


xu 

existed  for 
a  certain 
period,  raay 
refer  them  to 
arbitrators 
to  decide  as 
to  their  con- 
tinuance. 


Nomination 
of  arbitra- 
tors to  be 
Avithin  a 
limited  time 
after  appli- 
cation for 
references 
made. 


Construe- 
tion  of 
terras. 


1  Vict.  c.  36. 


Appendix — Statutes. 

years,  it  shall  be  competent  for  any  railway  company  who 
may  consider  themselves  aggrieved  by  the  terms  of  remu- 
neration fixed  by  such  contract  or  award,  by  notice  under 
their  common  seal,  to  require  that  it  shall  be  referred  to 
arbitrators  to  determine  whether  any  and  what  alteration 
ought  to  be  made  therein ;  and  thereupon  such  arbitrators 
or  umpire  to  be  appointed  as  hereinbefore  mentioned  shall 
proceed  to  inquire  into  the  circumstances,  and  make  their 
award  therein,  as  in  the  case  of  an  original  agreement : 
Provided  always,  that  the  services  performed  by  such  rail- 
way company  for  the  post  office  shall  in  nowise  be  inter- 
rupted or  impeded  thereby. 

XVIII.  And  be  it  enacted,  that  in  all  references  to  be 
made  under  the  authority  of  this  act,  the  postmaster-general 
or  the  railway  company,  as  the  case  may  be,  shall  nomi- 
nate his  or  their  arbitrator  within  fourteen  days  after  no- 
tice from  the  other  party,  or  in  defaidt  it  shall  be  lawful 
for  the  arbitrator  appointed  by  the  party  giving  notice  to 
name  the  other  arbitrator ;  and  such  arbitrators  shall  pro- 
ceed forthwith  in  the  reference,  and  make  their  award 
therein  within  twenty-eight  days  after  their  appointment, 
or  otherwise  the  matter  shall  be  left  to  be  determined  by 
the  umpire ;  and  if  such  umpire  shall  refuse  or  neglect  to 
proceed  and  make  his  award  for  the  space  of  twenty-eight 
days  after  the  matter  shall  have  been  referred  to  him,  then 
a  new  umpire  shall  be  appointed  by  the  two  first-named 
arbitrators,  who  shall  in  like  manner  proceed  and  make  his 
award  within  twenty-eight  days,  or  in  default  be  super- 
seded, and  so  toties  quoties. 

XIX.  And  be  it  enacted,  that  whenever  the  term 
"company  of  proprietors,"  or  "railway  company,"  or 
"  company,"  is  used  in  this  act,  the  same  shall  extend  to 
and  be  construed  to  include  the  proprietors  for  the  time 
being  of  any  railway,  whether  a  body  corporate  or  indivi- 
duals, and  also  (during  the  continuance  of  any  demise  or 
lease  as  aforesaid)  any  person,  whether  a  body  corporate 
or  company  or  individuals,  to  whom  any  railway  or  part 
of  a  railway  may  previous  to  the  passing  of  this  act  have 
been  demised  or  let,  and  their  successors,  executors,  admi- 
nistrators, and  assigns,  unless  the  subject  or  context  be 
otherwise  repugnant  to  such  construction ;  and  that  the 
provisions  of  this  act  shall  be  construed  according  to  the 
respective  interpretations  of  the  terms  and  expressions  con- 
tained in  an  act  passed  in  the  first  year  of  the  reign  of  her 
present  Majesty,  intitided  "An  Act  for  consolidating  the 
Laws  relative  to  Offences  against  the  Post  Office  of  the 


I 


1  S(  2  Vict.  c.  98.  xii 

United  Kingdom,  and  for  regulating  the  judicial  Adminis- 
tration of  the  Post  Office  Laws,  and  for  explaining  certain 
Terms  and  Expressions  employed  in  those  Laws,"  so  far 
as  those  interpretations  are  not  repugnant  to  the  subject  or 
inconsistent  with  the  context  of  such  provisions ;  and  that 
this  present  act  shall  be  deemed  and  construed  to  be  a  post 
office  act  within  the  intent  and  meaning  of  the  said  last- 
mentioned  act;  and  the  pecuniary  penalties  hereby  im-  > 
posed  shall  be  recovered  and  recoverable  in  the  manner 
and  form  therein  particularly  mentioned  and   expressed 
with  reference  to  the  pecuniary  penalties  imposed  by  the 
post  office  acts :  Provided  nevertheless,  that  any  justice  of 
the  peace  having  jurisdiction  for  any  county  through  which 
any  railway  shall  pass,  in  respect  of  which  any  penalty  or 
forfeiture  under  this  act  shall  have  been  incurred,  shall 
and  may  hear  and  determine  any  offence  against  this  act 
which  may  subject  any  company  to  a  pecuniary  penalty 
not  exceeding  twenty  pounds ;  and  a  summons  issued  under 
the  post  office  acts  by  any  such  justice  against  any  railway 
company  for  the  recovery  of  any  such  penalty  shall  be 
deemed  to  be  sufficiently  served  in  case  either  the  sum- 
mons or  a  copy  thereof  be  delivered  to  any  officer,  servant, 
or  agent  of  such  company,  or  be  left  at  any  station  belong- 
ing to  such  company. 

XX.  And  be  it  enacted,  That  this  act  may  be  amended  Act  may  be 
or  repealed  by  any  act  to  lae  passed  in  the  present  session  ^"^"^^'^ "'' 
of  parliament.  r  pea  e  . 


Appendix — Statutes. 


1  &  2  Vict.  c.  117. 

An  Act  to  provide  for  the  Custody  of  certain  Monies 
paid  in  pursuance  of  the  Standing  Orders  of  either 
House  of  Parliament  by  Subscribers  to  Works  or 
Undertakings  to  be  effected  under  the  Authority  of 
Parliament.  [16th  August,  1838.] 

Whereas  it  is  expedient  to  pro\'ide  for  the  custody  of  any 
sums  of  money  paid  in  pursuance  of  any  standing  order 
of  the  lords  spiritual  and  temporal  in  parliament  assem- 
bled, or  of  the  commons  in  parliament  assembled,  by  sub- 
scribei's  to  works  or  undertakings  to  be  made  under  the 
authority  of  an  act  of  parliament :  Be  it  therefore  enacted 
by  the  Queen's  most  excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and 
Authority  to  by  the  authority  of  the  same,  that  in  all  cases  in  Avhich 
deposit.         any  sum  of  money  is  required  by  any  standing  order  of 
either  house  of  parliament,  either  now  or  hereafter  to  be 
in  force,  to  be  paid  by  the  subscribers  to  any  work  or  un- 
dertaking which  is  to  be  executed  under  the  authority  of 
an  act  of  parliament,  if  the  director  or  person  or  dii-ectors 
or  persons  having  the  management  of  the  affairs  of  any 
such  proposed  work  or  undertaking,   or  any  five  of  them, 
shall  apply  to  the   chairman  of  the   committees    of  the 
house  of  lords  with  respect  to  any  such  money  required 
by  any  standing  order  of  the  lords  spiritual  and  temporal 
in  parliament  assembled,  or  to  the  speaker  of  the  house 
of  commons  with  respect  to  any  such  money  required  by 
any  standing  order  of  the  commons  in  parliament  assem- 
bled, the  said  chairman  or  the  said  speaker  may,  by  warrant 
or  order  under  his  hand,  direct  that  such  sum  of  money  shall 
be  paid  in  manner  hereinafter  mentioned  ;  that  is  to  say, 
into  the  bank  of  England  in  the  name  and  with  the  pri- 
vity of  the  accountant-general  of  the  court  of  exchequer 
in  England,  if  the   work  or  undertaking  in  respect  of 
which  the  sum  of  money  is  required  to  be  paid  is  intended 
to  be  executed  in  that  part  of  the  United  Kingdom  called 
England;  or  into  the  bank  of  England  in  the  name  and 
with  the  privity  of  the  said  accountant-general,  or  into 
any   of   the    banks  in    Scotland  established   by   act   of 
parliament  or  royal  charter  in  the  name  and  \vith  the  pri- 


I 


1  S(  2  Vict.  e.  117.  xv 

vity  of  the  Queen's  remembrancer  of  the  court  of  ex- 
chequer in  Scotland,  at  the  option  of  the  person  or  persons 
making  such  application  as  aforesaid,  in  case  such  work  or 
undertaking  is  intended  to  be  executed  in  that  part  of  the 
United  Kingdom  called  Scotland;  or  into  the  bank  of  Ire- 
land in  the  name  and  with  the  privity  of  the  accountant- 
general  of  the  court  of  chancery  in  Ireland,  in  case  such 
work  or  undertaking  is  intended  to  be  made  or  executed 
in  that  partof  the  United  Kingdom  called  Ireland;  and  every 
such  application  as  aforesaid  to  the  said  chairman  or  speaker 
shall  be  made  in  writing,  and  be  signed  by  the  director 
or  directors,  or  person  or  persons  having  the  management 
of  the  said  work  or  undertaking,  or  by  any  five  of  them; 
and  therein  shall  be  stated  the  name  or  description  of 
such  work  or  undertaking,  and  name  and  place  of  abode 
or  the  names  and  places  of  abode  of  such  director  or  di- 
rectors, person  or  persons,  and  the  sum  of  money  required 
to  be  paid,  and  the  bank  and  name  into  and  in  which  the 
same  is  to  be  paid ;  and  such  particulars  shall  also  be  set 
forth  in  every  such  warrant  or  order  ;  and  such  warrant  or 
order  shall  be  a  sufficient  authority  for  the  accountant- 
general  of  the  said  court  of  exchequer  in  England,  the 
Queen's  remembrancer  of  the  court  of  exchequer  in  Scot- 
land, and  the  accountant-general  of  the  court  of  chancery 
in  Ireland  respectively,  to  permit  the  sum  of  money 
directed  to  be  paid  by  such  warrant  or  order  to  be  placed 
to  an  account  opened  or  to  be  opened  in  his  name  in 
the  bank  mentioned  in  such  warrant  or  order  (a). 

(a)  The  abolition  of  the  court  of  exchequer,  as  a  court  ol 
equity,  has  given  rise  to  a  slight  modification  of  this  act;  by 
the  5  Vict.  c.  5,  "  For  making  further  Provisions  for  the  Ad- 
ministration of  Justice,"  s.  13,  it  is  enacted  "That  in  every 
case  in  which,  by  virtue  of  any  act  or  acts  of  parliament,  or 
otherwise,  any  sum  or  sums  of  money  would,  on  or  after  the 
said  fifteenth  day  of  October  one  thousand  eight  hundred  and 
forty  one,  be  payable  by  any  person  or  persons,  or  body 
politic  or  corporate,  into  the  bank  of  England,  in  the  name  or 
with  the  privity  of  the  accountant-general  of  the  court  of  ex- 
chequer, and  which,  when  paid  in  accordingly,  would  be 
subject  to  the  order  of  the  said  court  of  exchequer  sitting  as 
a  court  of  equity,  the  same  sum  and  sums  shall  be  payable 
and  paid  into  the  bank  of  England  in  the  name  and  with  the 
privity  of  the  accountant-general  of  the  court  of  chancery,  to 
be  placed  to  his  account  to  the  like  credit  as  the  same  would 
have  been  payable  if  this  act  had  not  passed,  but  subject  to  the 
order  of  the  said  court  of  chancery ;  and  that  in  every  case  in 


Appen  dix — Statutes. 

II.  And  be  it  enacted,  that  it  shall  be  lawful  for  the 
person  or  persons  named  in  such  warrant  or  order,  or  the 
survivors  or  survivor  of  them,  or  any  five  of  them,  to  pay 
the  sura  of  money  mentioned  in  such  warrant  or  order 
into  the  bank  mentioned  in  such  warrant  or  order  in  the 
name  and  with  the  privity  of  the  officer  or  person  in 
whose  name  such  sum  shall  be  directed  to  be  paid  by 
such  warrant  or  order,  to  be  placed  to  his  account  there 
ex  parte  the  work  or  undertaking  mentioned  in  such  war- 
rant or  order;  and  every  such  sum  so  paid  in,  or  the  se- 
curities in  or  upon  which  the  same  may  be  invested  as 
hereinafter  mentioned,  shall  there  remain  until  the  same 
or  such  securities  as  aforesaid  shall  be  paid  out  of  such 
bank  in  pursuance  of  the  provisions  of  this  act:  Provided 

which  any  money,  funds,  annuities,  or  securities,  or  other  pro- 
perty, would,  on  or  after  the  said  filteenth  day  of  October 
one  thousand  eight  hundred  and  forty  one,  be  payable  or 
transferrable  into  the  name  of  or  become  vested  in  the  ac- 
countant-general of  the  said  court  of  exchequer,  and  which, 
when  paid  or  transferred  accordingly,  would  be  subject  to  the 
order  of  the  same  court  sitting  as  a  court  of  equity,  the  same 
money,  funds,  annuities,  securities,  and  other  property  shall 
be  paid,  transferrable,  and  transferred  into  the  name  of  or 
vested  in  the  accountant-general  of  the  said  court  of  chan- 
cery, in  trust  to  attend  the  order  of  the  said  court  of  chan- 
cery, and  the  same  shall  be  applicable  to  the  same  purposes 
as  the  same  would  have  been  applicable  if  this  act  had  not 
passed,  except  where  otherwise  directed  by  this  act;  and  that 
all  money,  funds,  annuities,  securities,  and  property  which 
shall  be  so  paid  and  transferred  into  the  name  of  the  said 
accountant-general  of  the  court  of  chancery,  and  which,  be- 
fore the  passing  of  this  act,  or  in  case  this  act  had  not  passed, 
were  paid  or  transferred,  or  would  have  been  payable  or 
transferrable,  to  the  accountant-general  of  the  court  of  ex- 
chequer, by  virtue  of  anj'  act  or  acts  already  passed  or  here- 
after to  be  passed,  or  other  authority  whatsoever,  shall  be  held 
subject  to  such  or  the  like  orders  and  directions  of  the  said 
court  of  chancery,  and  subject  to  such  powers  and  provisions, 
as  the  same  would  have  been  subject  to  in  case  the  same  had 
been  originally  directed  or  authorized  to  have  been  paid  and 
transferred  into  the  name  of  the  accountant-general  of  the 
said  court  of  chancery,  and  had  been  made  originally  subject 
to  the  orders  and  directions  of  the  last  mentioned  court; 
and  the  orders  and  directions  of  the  said  court  of  chancery 
relating  thereto  shall  have  the  same  force  and  effect  as  any 
like  orders  and  directions  of  the  court  of  exchequer  relating 
thereto  would  have  had  if  this  act  had  not  passed." 


1  <^  2  Vict.c.  117.  xvii 

always,  that  every  sum  paid  into  the  bank  of  England  in 
the  name  and  with  the  privity  of  the  accountant-general  of 
the  court  of  exchequer  under  the  provisions  of  this  act  shall 
be  paid  in  and  placed  to  his  account  there  pursuant  to  the 
method  prescribed  by  an  act  passed  in  the  first  year  of  the 
reign  of  his  late  Majesty  King  George  the  Fourth,  inti- 
tuled "  An  Act  for  the  better  securing  Money  and  Effects  1  ^-  4,  c-35. 
paid  into  the  Court  of  Exchequer  at  Westminster  on  ac- 
count of  the  Suitors  of  the  said  Court,  and  for  the  Appoint- 
ment of  an  Accountant-General  and  Two  Masters  of  the 
said  Court,  and  for  other  Purposes,"  and  pursuant  to  the 
general  orders  of  the  said  court,  and  without  fee  or  re- 
ward; and  every  sum  paid  into  the  bank  of  Ireland  in  the 
name  and  with  the  privity  of  the  acountant-general  of  the 
court  of  chancery  in  Ireland,  under  the  provisions  of  this 
act,  shall  be  paid  in  and  placed  to  his  account  pursuant  to 
the  method  prescribed  by  an  act  made  and  passed  in  the 
Parliament  of  Ireland  in  the  twenty-third  and  twenty- 
fourth  years  of  the  reign  of  his  late  Majesty  King  George 
the  Third,  intituled  "An  Act  for  the  better  securing  23  &  24  G.  3. 
the  Monies  and  Effects  of  the  Suitors  of  tlie  Court  of  Chan-  ^'-^ 
eery  and  Exchequer,  by  depositing  the  same  in  the  Na- 
tional Bank, and  to  prevent  the  forging  and  counterfeiting 
any  Draft,  Order,  or  other  Voucher  for  the  Payment  or 
Delivery  of  such  Money  and  Effects,  and  for  other  Pur- 
poses," and  pursuant  to  the  general  orders  of  the  said 
Court,  and  without  fee  or  reward, 

III.  And  be  it  enacted,  that  if  the  person  or  persons  investment 
named  in  such  warrant  or  order,  or  the  survivor  or  survi-  "^  deposit, 
vors  of  them,  or  any  five  of  them,  desire  to  have  invested 

any  sum  so  paid  into  the  bank  of  England  or  the  bank  of 
Ireland,  the  court  in  the  name  of  whose  accountant-gene- 
ral the  same  may  have  been  paid,  on  a  petition  presented 
to  such  court  in  a  summary  way  by  him  or  them,  may 
order  that  such  sum  shall,  until  the  same  be  paid  out  of 
court  in  pursuance  of  this  Act,  be  laid  out  in  the  three  per 
centum  consolidated  or  three  per  centum  reduced  bank 
annuities,  or  any  government  Security  or(6)  securities. 

IV.  And  be  it  enacted,  that  on  the  termination  of  the  Repayment 
session  of  parliament  in  which  the  petition  or  bill  for  the  of  deposit. 

(b)  Exchequer  bills,  it  seems,  are  government  securities, 
within  the  meaning  of  the  above  clause,  so  decided  by  Shad- 
well,  V.  C,  in  ex  parte  South  Eastern  Railway  Company,  9 
Jur.  650,  overruling  decision  of  Alderson,  B.  to  the  contrary 
in  ex  parte  Chaplin,  3  Y.  &  C.  397. 


Appendix — Statutes. 

purpose  of  making  or  sanctioning  an  j'  such  work  or  under- 
taking shall  have  been  introduced  into  parliament,  or  if  such 
petition  or  bill  shall  be  rejected  or  finally  withdrawn  by 
some  proceeding  in  either  house  of  parliament,  or  shall  not 
be  allowed  to  proceed,  or  if  an  act  be  passed  authorizing 
the  making  of  such  work  or  undertaking,  and  if  in  any  or 
either  of  the  foregoing  cases  the  person  or  persons  named 
in  such  waiTant  or  order,  or  the  survivor  or  survivors  of 
them,  or  the  majority  of  such  (c)  persons,  apply  by  pe- 
tition to  the  court  in  the  name  of  whose  accountant-gene- 
ral the  sura  of  money  mentioned  in  such  warrant  or 
order  shall  have  been  paid,  or  to  the  court  of  exchequer 
in  Scotland  in  case  such  sum  of  money  shall  have  been 
paid  in  the  name  of  the  said  Queen's  remembrancer,  the 
court  in  the  name  of  whose  accountant-general  or  Queen's 
remembrancer  such  sum  of  money  shall  have  been  paid 
shall,  by  order,  direct  the  sum  of  money  paid  in  pursu- 
ance of  such  waiTant  or  order,  or  the  stocks,  funds,  or 
securities  in  or  upon  which  the  same  are  invested,  and  the 
interest  or  dividends  thereof,  to  be  transferred  and  paid 
to  the  party  or  parties  so  applying  or  to  any  other  person 
or  persons  whom  they  may  appoint  in  that  (a?)  behalf;  but 
no  such  order  shall  be  made  in  the  case  of  any  such  peti- 
tion or  bill  being  rejected,  or  not  being  allowed  to  proceed, 
or  withdrawn,  unless  it  be  proved  by  the  certificate  of  the 
chairman  of  committees,  if  the  said  petition  or  bill  was 
rejected  or  not  allowed  to  proceed,  or  withdrawn  in  its 
passage  through  the  house  of  lords,  or  of  the  said  speaker,  if 
the  said  petition  or  bill  was  rejected  or  not  allowed  to  pro- 
ceed, or  withdrawn  during  its  passage  through  the  house 
of  commons,   that  the  petition  or  bill  has  been  either  so 

{c)  Where  money  was  paid  into  the  bank  under  this  act, 
by  five  of  the  directors  of  a  railway  company,  the  court  of 
chancery  refused  to  order  it  to  be  paid  out  to  three  of  them 
on  their  petition,  unless  the  others  appeared  and  consented  to 
the  application.  In  re  Staines  and  Richmond  Railway  Com- 
pany, 9  Jur.  479. 

(d)  Where  money  was  paid  into  the  bank  under  this  act, 
the  court,  upon  the  railway  company  obtaining  their  act  of 
parliament,  and  on  petition  of  all  the  persons  in  whose  names 
the  money  was  standing,  being  the  principal  promoters  of  the 
undertaking,  made  an  order  for  payment  of  such  money  to 
their  banker,  who  was  the  banker  to  the  railway  company,  (in 
re  Warwick  and  Leamington  Railway  Company,  13  Sim.  31 ;) 
see  also  n.  (c),  ante. 


J 


1  8f2VicLc.  117. 

rejected,  or  not  allowed  to  proceed,  or  so  withdrawn  by 
some  proceeding  in  one  or  other  house  of  parliament ; 
which  certificate  the  said  chairman  or  speaker  shall  grant 
on  the  application  in  writing  of  the  person  or  persons 
or  the  majority  of  the  persons  named  in  such  warrant  or 
order,  or  the  survivor  or  survivors  of  them;  and  every 
such  certificate  shall  be  conclusive  proof  of  such  rejection, 
or  not  proceeding,  or  withdrawal. 


Appendix — Statutes. 


2  &  3  Vict.  c.  45. 

Jn  Act  to  amend  an  Act  of  the  Fifth  and  Sixth  Years 
of  the  Reign  of  His  late  Majesty  King  William  the 
Fourth  relating  to  Highways. 

[17th  August,  1839.] 

5  &  6  w.  4,   Whereas  by  an  act  passed  in  the  session   of  parliament 
c.  50.  holden  in  the  fifth  and  sixth  years  of  the  reign  of  his  late 

Majesty  King  William  the  Fourth,  intituled  an  Act  to 
consolidate  and  amend  the  Laws  relating  to  Highways  in 
that  Part  of  Great  Britain  called  England,  it  is  amongst 
other  things  by  the  said  act  enacted,  that  whenever  a  rail- 
road shall  cross  any  highway  for  carts  or  carriages  the  pro- 
prietors of  the  said  railroad  shall  make  and  maintain  good 
and  sufficient  gates  at  each  of  the  said  crossings,  and  shall 
employ  good  and  proper  persons  to  attend  to  the  opening 
and  shutting  of  such  gates,  so  that  the  persons,  carts,  or 
carriages  passing  along  such  road  shall  not  be  exposed  to 
any  danger  or  damage  by  the  passing  of  any  carnages  or 
engines  along  the  said  railroad,  and  any  complaint  for  any 
neglect  in  respect  of  the  said  gates  shall  be  made  within 
one  month  after  the  said  neglect  to  one  justice,  who  may 
summon  the  party  so  complained  against  to  ajjpear  before 
the  justices  at  their  next  special  sessions  for  the  highways, 
who  shall  hear  and  decide  upon  the  said  complaint,  and 
the  proprietor  so  offending  shall  forfeit  any  sum  not  ex- 
ceeding five  pounds :  and  whereas  it  is  also  by  the  said 
act  further  enacted,  that  nothing  in  this  act  contained  shall 
apply  to  any  turnpike  roads,  except  where  expressly  men- 
tioned, or  to  any  roads,  bridges,  carriageways,  cartways, 
horseways,  bridleways,  footways,  causeways,  churchyards, 
or  pavements  which  now  are  or  may  hereafter  be  paved, 
repaired,  or  cleansed,  broken  up  or  diverted,  under  or  by 
virtue  of  the  provisions  of  any  local  or  personal  act  or  acts 
of  parliament :  and  whereas  it  is  deemed  expedient  to 
amend  the  said  provisions  in  the  said  act,  and  to  extend 
the  same  to  turnpike  roads  in  England :  be  it  therefore 
enacted  by  the  Queen's  Most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  lords  spiritual  and 
temporal,  and  commons,  in  this  present  parliament  as- 
sembled, and  by  the  authority  of  the  same,  that  wherever 


2^3  Vict.  c.  45.  xxi 

a  railroad   crosses   or  shall  hereafter   cross   any  turnpike  Proprietors 
road  or  any  highway  or  statute  labour  road  for  carts  or  °'^^^J^°^^ 
carriages  in  Great  Britain,  the  proprietors  or  directors  of  gates  where 
the  company  of  proprietors  of  the  said  railroad  shall  make  any  railroad 
and  maintain  good  and  sufficient  gates  across  each  end  of  highway.&c- 
such  turnpike  or  other  road  as  aforesaid  at  each  of  the  said 
crossings,  and   shall   employ  good    and   proper  persons  to 
open  and  shut  such  gates,    so  that  the  pei'sons,  carts,  or 
carriages  passing  along  such  turnpike  or  highway  shall  not 
be  exposed  to  any  danger  or  damage  by  the  passing  of  any 
carriages  or  engines  along  the  said  railroad ;  and  an)'  com- 
plaint for  any  neglect  in  respect   of  the  said  gates  shall  be 
made  within  one  calendar  month  after  the  said  neglect  to 
any  justice  of  the  peace,  or  if  in  Scotland  to  the  sheriff  of 
the   county,  who  may  summon   the   party  so   complained 
against  to  appear  before  them  or  him    at  the  next  petty 
session   or  court    to  be  holden    for  the  district   or  division 
within  which  such  gates   are  situate,   who  shall  hear  and 
decide  upon  the  said  complaint ;  and  the  proprietor  or  di-  penalty  ^5 
rector  so  offending  shall  for  each  and  every  day  of  such  for  each 
neglect  forfeit  any  sum  not  exceeding  five  pounds,  toge-  giJct."^' 
ther  with  such  costs  as  to  the  justices  or  sheriff  depute 
aforesaid  before  whom  the  conviction  shall  take  place  shall 
seem  fit. 

II.  And  be  it  further  enacted,  that  the  penalties  by  this  How  penai- 
act  imposed,  and  the  costs  to  be  allowed  and  ordered  by  J^f^'*^^';^^^'^ '"^ 
the  authority  of  this  act,  shall  in  England  be  recovered  and  applied, 
and  applied  in  the  same  manner  as  any  penalties  and  costs 

under  the  said  act,  and  in  Scotland  sliall  be  recovered  and 
applied  to  the  maintenance  of  the  statute  labour  roads 
within  the  district  where  the  offence  is  committed. 

III.  And  be  it  further  enacted,  that  this  act  shall  com-  Commence- 
mence  and  take  effect  from  and  after  tlie  thirtieth  day  of  ment  of  act. 
September,  one  thousand  eight  hundred  and  thirty-nine. 


App€7idix —  Statutes. 


No  railway 
to  be  opened 
without  no- 
tice to  the 
board  of 
trade. 


Penalty  for 
opening  rail- 
ways with, 
out  notice 


Returns  to 
be  made  by 
railway  com 
panies. 


3&4  Vict.  c.  97. 

An  Act  for  regulating  Railways. 

10th  August,  1840. 

Whereas  it  is  expedient  for  the  safety  of  the  public  to  pro- 
vide for  the  due  supervision  of  railways :  be  it  therefore  en- 
acted bytheQueen's  most  excellent  Majesty,  byand  with  the 
advice  and  consent  of  the  lords  spiritual  and  temporal,  and 
commons,  in  this  present  parliament  assembled,  and  by  the 
authority  of  the  same,  that,  after  two  months  from  the  pass- 
ing of  this  act,  no  railway,  or  portion  of  any  railway,  shall 
be  opened  for  the  public  conve3'anceofpassengers  or  goods 
until  one  calendar  month  after  notice  in  writing  of  the  in- 
tention of  opening  the  same  shall  have  been  given,  by  the 
company  to  whom  such  railway  shall  belong,  to  the  lords 
of  the  committee  of  her  Majesty's  privy  council  appointed 
for  trade  and  foreign  plantations. 

II.  That  if  any  railway,  or  portion  of  any  railway,  shall 
be  opened  without  due  notice  as  aforesaid,  the  company  to 
whom  such  railway  shall  belong  shall  forfeit  to  her  Majesty 
the  sum  of  twenty  pounds  for  every  day  during  which  the 
same  shall  continue  open,  until  the  expiration  of  one  calen- 
dar month  after  the  company  shall  have  given  the  like 
notice  as  is  herein-before  required  before  the  opening  of 
the  railway ;  and  any  such  penalty  may  be  recovered  in 
any  of  her  Majesty's  courts  of  record. 

III.  That  the  lords  of  the  said  committee  may  order  and 
direct  every  railway  company  to  make  up  and  deliver  to 
them  returns,  according  to  a  form  to  be  provided  by  the 
lords  of  the  said  committee,  of  the  aggregate  traffic  in  pas- 
sengers, according  to  the  several  classes,  and  of  the  aggre- 
gate traffic  in  cattle  and  goods  respectively,  on  the  said 
railway,  as  well  as  of  all  accidents  which  shall  have  occur- 
red thereon  attended  with  personal  injury,  and  also  a  table 
of  all  tolls,  rates,  and  charges  from  time  to  time  levied  on 
each  class  passengers,  and  on  cattle  and  goods,  conveyed  on 
the  said  railway;  and  if  the  returns  herein  specified  shall 
not  be  delivered  within  thirty  days  after  the  same  shall  have 
been  required,  every  such  company  shall  forfeit  to  her  Ma- 
jest}-  the  sum  of  twenty  pounds  for  everj'  day  during  which 
the  said  company  shall  wilfully  neglect  to  deliver  the  same ; 


B  8(  4  Vict.  c.  97.  xxiii 

and  every  such  penalty  may  be  recovered  in  any  of  her 
Majesty's  courts  of  record:  provided  always,  that  such 
returns  shall  be  required,  in  like  manner,  and  at  the  same 
time,  from  all  the  said  companies,  unless  the  lords  of  the 
said  committee  shall  specially  exempt  any  of  the  said  com- 
panies, and  shall  enter  the  grounds  of  such  exemption  in 
the  minutes  of  their  precedings. 

IV.  That  every  officer  of  any  company  who  shall  will-  Penalty  for 
fully  make  any  false  return  to  the  lords  of  the  said  com-  J^turns. 
mittee  shall  be  deemed  guilty  of  a  misdemeanor. 

V.  That  it  shall  be  lawful  for  the  lords  of  the  said  com-  Board  of 
mittee,  if  and  when  they  shall  think  fit,  to  authorize  any  ^^^^^lut^T. 
proper  person  or  persons  to  inspect  any  railway;    and  it  sons  to in. 
shall  be  lawful  for  every  person  so  authorized,  at  all  reason-  sped  rail- 
able  times  upon  producing  his  authority,  if  required,  to  ^^^^' 
enter  upon  and  examine  the  said  railway,  and  the  stations, 

works,  and  buildings,  and  the  engines  and  carriages  belong- 
ing thereto :  provided  always,  that  no  person  shall  be  eligi- 
ble to  the  appointment  as  inspector  as  aforesaid  who  shall 
within  one  year  of  his  appointment  have  been  a  director, 
or  have  held  any  office  of  trust  or  profit  under  any  railway 
company. 

VI.  That  every  person  wilfully  obstructing  any  person.  Penalty  on 
duly  authorized  as  aforesaid,  in  the  execution  of  his  duty,  P"8ons  ob- 
shall,  on  conviction  before  a  justice  of  the  peace  having  spector. 
jurisdiction  in  the  place  where  the  offence  shall  have  been 
committed,  forfeit  and  pay  for  every  such  offence  any  sum 

not  exceeding  ten  pounds;  and  on  default  of  payment  of 
any  penalty  so  adjudged,  immediately  or  within  such  time 
as  the  said  justice  of  the  peace  shall  appoint,  the  same  jus- 
tice, or  any  other  justice  having  jurisdiction  in  the  place 
where  the  offender  shall  be  or  reside,  may  commit  the  of- 
fender to  prison  for  any  period  not  exceeding  three  calen- 
dar months ;  such  commitment  to  be  determined  on  payment 
of  the  amount  of  the  penalty;  and  every  such  penalty  shall 
be  returned  to  the  next  ensuing  court  of  quarter  sessions 
in  the  usual  manner. 

VII.  And  whereas  many  railway  companies  are  or  may  Copies  of  ex- 
hereafter  be  empowered  by  act  of  parliament  to  make  bye  '^^'"g  bye 
laws,  orders,  rules,  or  regulations,  and  to  impose  penalties  laid  before 
for  the  enforcement  thereof,  upon  persons  other  than  the  the  board  of 
servants  of  tlie  said  companies,  and  it  is  expedient  that  ^'^  ^' 
such  powers  should  be  under  proper  control ;  be  it  enacted, 

that  true  copies  of  all  sucli  bye  laws,  orders,  rules,  and  re- 
gulations made  under  any  such  powers  by  every  such  com- 
pany before  the  passing  of  this  act,  certified  in  such  manner 


xxiv  Appenaix — Statutes. 

as  the  lords  of  the  said  committee  shall  from  time  to  time 

direct,  shall,  within  two  calendar  months  after  the  passing 
of  this  act,  be  laid  before  the  lords  of  the  said  committee  ; 
otherwise  to  and  that  every  such  bye  law,  order,  rule,  or  regulation,  not 
be  void.         g^  j^^j^j  \3ef0re  the  lords  of  the  said  committee  within  the 
aforesaid  period,  shall,  from  and  after  that  period,  cease  to 
have  any  force  or  effect,   saving  in  so  far  as  any  penalty 
may  have  been  then  already  incurred  under  the  same. 
No  future  VIII.  That  no  such  bye  law,  order,  rule,  or  regulation 

be  vauTtiU  "^^^^  Under  any  such  power,  and  which  shall  not  be  in 
two  calendar  force  at  the  time  of  tlie  passing  of  this  act,  and  no  order, 
months  after  j.yig^  Qj.  regulation,  annulling  any  such  existing  bye  law, 
been  laid  be-  rule?  order,  or  regulation,  which  shall  be  made  after  the 
fore  the  passing  of  this  act,  shall  have  any  force  or  eflect  until  two 
trade  °  calendar  months  after  a  true  copy  of  such  bye  law,  order, 

rule,  or  regulation,  certified  as  aforesaid,   shall  have  been 
laid  before  the  lords  of  the  said  committee,  unless  the  lords 
of  the  said  committee  shall,  before  such  period,  signify  their 
approbation  thereof. 
Board  of  IX.  That   it  shall    be  lawful   for  the  lords  of  the  said 

d^isaUow^bye  committee,  at  any  time  either  before  or  after  any  bye  law, 
laws.  order,  rule,  or  regulation,  shall  have  been  laid  before  them 

as  aforesaid  shall  have  come  into  operation,  to  notify  to  the 
company  who  shall  have  made  the  same  their  disallow- 
ance thereof,  and,  in  case  the  same  shall  be  in  force  at  the 
time  of  such  disallowance,  the  time  at  which  the  same  shall 
cease  to  be  in  force ;  and  no  bye  law,  order,  rule,  or  regu- 
lation, which  shall  be  so  disallowed  shall  have  any  force  or 
effect  whatsoever,  or,  if  it  shall  be  in  force  at  the  time  of 
such  disallowance,  it  shall  cease  to  have  any  force  or  effect 
at  the  time  limited  in  the  notice  of  such  disallowance,  saving 
in  so  far  as  any  penalty  may  have  been  then  already  in- 
cuiTed  under  the  same. 
Provisionsof      X.  That  SO  much  of  every  clause,  provision,  and  enact- 
railway  acts  ment,  in  any  act  of  parliament  heretofore  passed   as  may 
confirma^tion  I'equire  the  approval  or  concurrence  of  any  justice  of  the 
of  bye  laws    peace,  court  of  quarter  sessions,  or  other  person  or  persons, 
repealed.       other  than  members  of  the  said  companies,  to  give  validity 
to  any  bye  laws,  orders,  rules,  or  regulations  made  by  any 
sucli  company,  shall  be  repealed. 
Board  of  ■^^-  That  whenever  it  shall  appear  to  the  lords  of  the 

trade  may  said  committee,  that  any  of  the  provisions  of  the  several 
direct  prose-  jj^jg  pf  parliament  regulating  any  of  the  said  companies,  or 
enforce  pro-  the  provisions  of  this  act,  have  not  been  complied  with  on 
visions  of  the  part  of  any  of  the  said  companies,  or  any  of  their  offi- 
railway  acts.  ^^^^^  ^^^  that  it  would  be  for  the  public  advantage  that  the 


S8{4  Vict.  c.  97.  xxv 

due  performance  of  the  same  should  be  enforced,  the  lords 
of  the  said  committee  shall  certify  the  same  to  her  Majes- 
ty's attorney-general  for  England  or  Ireland,  or  to  the  lord 
advocate  for  Scotland,  as  the  case  may  require ;  and  there- 
upon the  said  attorney-general  or  lord  advocate  shall,  by 
information,  or  by  action,  bill,  plaint,  suit  at  law  or  in 
equity,  or  other  legal  proceeding,  as  the  case  may  require, 
proceed  to  recover  such  penalties  and  forfeitures,  or  other- 
i  wise  to  enforce  the  due  performance  of  the  said  provisions, 
by  such  means  as  any  person  aggrieved  by  such  non-com- 
pliance, or  otherwise  authorized  to  sue  for  such  penalties, 
might  employ  under  the  provisions  of  the  said  acts  :   pro-  Notice  to  be 

vided  alwavs,  that  no  such  certificate  as  aforesaid  shall  be  6'ven  to  the 

,,-',,,.,  .  ,  .  .,  company, 

given  hy  the  lords  of  the  said  committee  until  twenty-one 

days  after  they  shall  have  given  notice  of  their  intention  to 

give  the  same    to  the  company  against   or  in    relation    to 

whom  they  shall  intend  to  give  the  same. 

XII.  That    no  legal  proceedings   shall  be  commenced  Prosecutions 

under    the   authority  of  the  lords    of  the  said    committee  *"  ''e  "nder 
.,  ■'  „  „.  •      ^     1  •     sanction  of 

against  any  railway  company  tor  any  offence   against  this  board  of 

act,  or  any  of  the  several  acts  of  parliament  relating  to  rail-  t''?^f'  ^^^ 

ways,  except  upon  such  certificate  of  the  lords  of  the  said  year  aVer*^ 

committee   as  aforesaid,    and  within   one  year  after  such  the  offence. 

offence  shall  have  been  committed. 

XIII.  That  it  shall  be  lawful  for  any  officer  or  agent  of  Punishment 
any  railway  company,   or  for  any  special  constable    duly  °f  ^^^^j^^J"'^ 
appointed,  and  all  such  persons  as  they  may  call  to  their  companies 
assistance,  to  seize  and  detain  any  engine   driver,  guard,  ?"'%  of  mis- 
porter,  or  other  servant  in  the  employ  of  such  company 

who  shall  be  found  drunk  while  employed  upon  the  railway, 
or  commit  any  offence  against  any  of  the  bye  laws,  rules, 
or  regulations   of  such   company,   or  shall   wilfully,  ma- 
liciously, or  negligently  do  or  omit  to  do  any  act  whereby 
the  life  or  limb  of  any  person  passing  along  or  being  upon 
the  railway  belonging  to  such  company,  or  the  works  thereof 
respectively,  shall  be  or  might  be  injured  or  endangered,  or 
whereby  the  passage  of  any  of  the  engines,  carriages,  or 
trains  shall  be  or  might  be  obstructed  or  impeded,  and  to 
convey  such  engine  driver,  guard,  porter,  or  other  servant 
so  offending,  or  any  person  counselling,  aiding,  or  assisting 
in  such  offence,  with  all  convenient  despatch,  before  some 
justice  of  the  peace  for  the  place  within  which  such  offence 
shall  be  committed,  without  any  other  warrant  or  authority 
than  this  act;  and  every  such  person    so  offending,  and 
every  person   counselling,   aiding,  or  assisting  therein  as 
aforesaid,  shall,  when  convicted  before  such  justice  as  afore- 


Justice  of 
the  peace 
empoivered 
to  send  any 
case  to  be 
tried  by  the 
quarter 
sessions. 


Appendix —  Statutes. 

said,  (who  is  hereby  authorized  and  required,  upon  com- 
plaint to  him  made,  upon  oath,  without  information  in 
"writing,  to  take  cognizance  thereof,  and  to  act  summarily 
in  the  premises,)  in  tlie  discretion  of  such  justice,  be  impri- 
soned, with  or  without  hard  labour,  for  any  term  not  ex- 
ceeding two  calendar  months,  or,  in  the  like  discretion  of 
such  justice,  shall  for  every  such  offence  forfeit  to  her  Ma- 
jesty any  sum  not  exceeding  ten  pounds,  and  in  default  of 
payment  thereof  shall  be  imprisoned,  with  or  without  hard 
labour  as  aforesaid,  for  such  period,  not  exceeding  two 
calendar  months,  as  such  justice  shall  appoint ;  such  com-  I 
mitment  to  be  determined  on  payment  of  the  amount  of 
the  penalty  ;  and  every  such  penalty  shall  be  returned  to 
the  next  ensuing  court  of  quarter  sessions  in  the  usual 
manner. 

XIV.  Provided  always,  and  be  it  enacted,  that  (if  upon 
the  hearing  of  any  such  complainthe  shall  think  fit)  it  shall 
be  lawful  for  such  justice,  instead  of  deciding  upon  the  mat- 
ter of  complaint  summarily,  to  commit  the  person  or  persons 
charged  with  such  offence  for  trial  for  the  same  at  the 
quarter  sessions  for  the  county  or  place  wherein  such  offence 
shall  have  been  committed,  and  to  order  that  any  such 
person  so  committed  shall  be  imprisoned  and  detained  in 
any  of  her  Majesty's  gaols  or  houses  of  correction  in  the 
said  county  or  place  in  the  meantime,  or  to  take  bail  for 
his  appearance,  with  or  without  sureties,  in  his  discretion  ; 
and  every  such  person  so  offending,  and  convicted  before 
such  court  of  quarter  sessions  as  aforesaid  (which  said  court, 
is  hereby  required  to  take  cognizance  of  and  hear  and  de- 
termine such  complaint,)  shall  be  liable,  in  the  discretion 
of  such  court,  to  be  imprisoned,  with  or  without  hard 
labour,  for  any  term  not  exceeding  two  years. 

XV.  That  from  and  after  the  passing  of  this  act  every 
person  who  shall  wilfully  do  or  cause  to  be  done  anything 
in  such  manner  as  to  obstruct  any  engine  or  carriage  using 
any  railway,  or  to  endanger  the  safety  of  persons  conve)'ed 
in  or  upon  the  same,  or  shall  aid  or  assist  therein,  shall  be 
guilty  of  a  misdemeanor,  and  being  convicted  thereof  shall 
be  liable,  at  the  discretion  of  the  court  before  which  he 
shall  have  been  convicted,  to  be  imprisoned,  with  or  with- 
out hard  labour,  for  any  term  not  exceeding  two  years. 

XVI.  That  if  any  person  shall  wilfull}' obstruct  or  im- 
iiientof  per-  pede  any  officer  or  agent  of  any  railway  company  in  the 
st'ructin?  the  execution  of  his  duty  upon  any  railway,  or  upon  or  in  any 
oilifers  of  of  the  Stations  or  other  works  or  premises  connected  there- 
any  railway    ^yith,  or  if  any  person  shall  wilfully  trespass  upon  any  rail- 


Punishment 

of  persons 

obstructing 

railway- 


For  punish- 


3.^-4  Vict,  c  07.  xxvii 

way,  or  any  of  the  stations  or  other  works  or  premises  con-  company,  or 

nected  therewith,  and  shall  refuse  to  quit  the  same  npon  *''^^P*^^'"S 

1  •  11  rr-  <.     1       '   .  1  "pon  any 

request  to  him  made  by  any  oincer   or  agent  oi  the  said  railway. 

company,  every  such  person  so  offending,  and  all  others 
aiding  or  assisting  therein,  shall  and  may  be  seized  and  de- 
tained by  any  such  officer  or  agent,  or  any  person  whom 
he  may  call  to  his  assistance,  until  such  offender  or  offen- 
ders can  be  conveniently  taken  before  some  justice  of  the 
peace  for  the  county  or  place  wlierein  such  offence  shall  be 
committed,  and  when  convicted  before  such  justice  as 
aforesaid  (who  is  hereby  authorized  and  required,  upon 
complaint  to  him  upon  oath,  to  take  cognizance  thereof,  and 
to  act  snmmarily  in  the  premises,)  shall,  in  the  discretion 
of  such  justice,  forfeit  to  her  Majesty  any  sum  not  exceed- 
ing five  pounds,  and  in  default  of  payment  thereof  shall  or 
maybe  imprisoned  for  any  term  not  exceeding  two  calendar 
months,  such  imprisonment  to  be  determined  on  payment 
of  the  amount  of  the  penalty. 

XVII.  That  no  proceeding  to  be  had  and  taken  in  pur-  Proceedings 

suance  of  this  act  shall  be  quashed  or  vacated  for  want  of  "°'  *°  ^^ 

form,  or  be  removed  by  certiorari,  or  by  any  other  writ  or  want  of  form 

process  whatsoever,  into  any  of  her  Majesty's  courts  of  re-  p""  removed 

cord  at  Westminster  or  elsewhere,  any  law  or  statute  to  the  '"'°  "'^  ^'*' 

.  ,  ,.  ^       J  penor 

contrary  notwithstanding.  courts. 

XVIII.  And   whereas    many   railway   companies    are  Repeal  of  all 
bound,  by  the  pi'ovisions  of  the  acts  of  parliament  by  which  Pi'ovisions  in 
they  are  incorporated  or  regulated,  to  make,  at  theexpence  thatempower 
of  the  owner  or  occupier  of  lands  adjoining  the  railway,  two  justices 
openings  in  the  ledges  or  flanches  thereof  (except  at  certain  ^'i.^f^T'^ 
places  on  such  railways  in  the  said  acts  specified),  for  effect-  specting  the 
ing  communications  between  such  railway  and  any  colla-  Pj'ope'' 
teral  or  branch  railway  to  belaid  down  over  such  lands,  and  op'e"ings'in 
any  disagreement  or  difference  which  shall  arise  as  to  the  the  ledges 
proper  places  for  making  any  such  openings  in  the  ledges  °j;^*"<=hes 
or  flanches  is  by  such  acts   directed  to  be  referred   to  the 
decision  of  any  two  justices  of  the  peace  within  their  re- 
spective jurisdictions:  and  whereas  it  is  expedient  that  so 

much  of  every  clause,  provision,  and  enactment  in  any  act 
of  parliament  heretofore  passed  as  gives  to  any  justice  or 
justices  the  power  of  hearing  or  deciding  upon  any  such 
disagreement  or  difference  as  to  the  proper  places  for  any 
such  openings  in  the  ledges  or  flanches  of  any  railway, 
should  be  repealed;  be  it  therefore  enacted,  that  so  much  of 
every  such  clause,  provision,  and  enactment  as  aforesaid 
shall  be  repealed. 

bb2 


xxviii  Appendix — Statutes. 

Board  of  XIX.  That  ill  case  any  disagreement  or  difference  shall 

lermlnesuch  ^^^^^  between  any  such  owner  or  occupier,  or  other  persons, 
disputes  in  and  any  railway  company,  as  to  the  proper  places  for  any 
future.  such  openings  in  the  ledges  or  flanches  of  any  railway  (ex- 

cept at  such  places  as  aforesaid),    for  the  purpose  of  such 
communication,  then  the  same  shall  be  left  to  the  decision 
of  the  lords  of  the  said  committee,  who  are  hereby  empow- 
ered to  hear  and  determine  the  same  in  such  way  as  they 
shall  think  fit,  and  their  determination  shall  be  binding  on 
all  parties. 
Communica-      XX.  That  all  notices,  returns,  and  other  documents,  re- 
tions  to  the    quired  by  this  act  to  be  given  to  or  laid  before  the  lords  of 
)e°ft'at  their    ^^^^  ^^^^  committee  shall  be  delivered  at  or  sent  by  the  post 
office.  to  the  office  of  the  lords  of  the  said  committee;  and  all  no- 

Coramunica-  tices,  appointments,  requisitions,  certificates,  or  other  docu- 

J'°"l''J  *''f  ments  in  writing,  signed  by  one  of  the  secretaries  of  the  said 
board  how  to  .  i  r..  •         i /•        i  i 

be  authenti-  committee,  or  by  some  othcer  appointed  tor  tliat  purpose  by 

cated.  the  lords  of  the  said  committee,  and  purporting  to  be  made 

by  the  lords  of  the  said  committee,  shall,  for  the  purposes  of 

What  shall     this  act,  be  deemed  to  have  been  made  by  the  lords  of  the 

„L/^"*^'^  said  committee;  and  service  of  the  same  upon  any  one  or 
good  service  v  ^\       i-       ..  r  -i  ii_ 

on  railway     more  ot  the  directors  oi  any  railway  company,    or  on  the 

company.       secretary  or  clerk  of  the  said  company,   or  by  leaving  the 
same  with  the  clerk  or  officer  atone  of  the  stations  belong- 
ing to  the  said  company,  shall  be  deemed  good  service  upon 
the  said  compan}'. 
Meaning  of       XXI.  That  wherever  the  word   "  Railway  "  is  used  in 
h'^R  m"'^''^.,    this  act  it  shall  be  construed  to  extend  to  all  railways  con- 
and  "  Com-    structed  under  the  powers  of  any  act  of  parliament,    and 
pauy.  "         intended  for  the  conveyance  of  passengers  in  or  upon   car- 
riages drawn  or  impelled  by  the  power  of  steam  or  by  any 
other  mechanical  power;  and  wherever  the    word  "Com- 
pany" is  used  in  this  act  it  shall  be  construed  to  extend  to 
and  include  the  proprietors  for  the  time  being  of  any  such 
railway,  whether  a  body  corporate  or  individuals,  and  their 
lessees,  executors,   administrators,  and  assigns,  unless  the 
subject  or  context  be  repugnant  to  such  construction. 
■Act  may  be        XXII.  That  this  act  may  be  amended  or  repealed  by 
repealed  this  any  act  to  be  passed  in  the  present  session  of  parliament. 


5  <&•  6  Vict.  c.  55. 


5  &  6  Vict.  c.  55. 

An  Act  for  the  better  Regulation  of  Railways,  and  for 
the  Conveyance  of  Troops.         [30th  July,  1 842.] 

Whereas  by  an  act  passed  in  the  third  and  fourth  years 
of  the  reign  of  her  present  Majesty,  intituled  "  An  Act  for  3^4  Vict, 
regulating  Railways,"   provision  was  made  for  the  super-  '''   " 
vision    of  railways:    and  whereas  it  is  expedient  for  the 
safety  of  the  public  to  make  further  provision  for  that  pur- 
pose: he  it  enacted,  by  the  Queen's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and   commons,    in  this  present  parliament  Co mneace. 
assembled,  and  by  the  authority  of  the  same,  that  this  act  ™entof  act. 
shall  come  into  operation  on  the  passing  thereof. 

II.  That  the  provisions  of  the  said  recited  act  and  of  this  Recited  act 
act  shall  be  construed  together  as  one  act,  except  so  far  as  ^"1^^  ^^^^ 
the  proTisions  of  the  said  recited  act  are  hereby  repealed,  or  strued  toge- 
shall  be  inconsistent  with  the  provisions  of  this  act.  ^^*''* 

III.  And  whereas  by  the  said  recited  act  it  is  enacted,  Notice  be- 
that  after  two  months  from  tlie  passing  of  the  said  recited  ramvay^e-"* 
act  no  railway,  or  portion  of  any  railway,  shall  be  opened  pealed. 

for  the  public  conveyance  of  passengers  or  goods  until  one 
calendar  month  after  notice  in  writing  of  the  intention  of 
opening  the  same  shall  have  been  given,  by  the  company 
to  whom  sucli  railway  shall  belong,  to  the  lords  of  the 
committee  of  her  Majesty's  privy  council  appointed  for  trade 
and  foreign  plantations:  and  whereas  by  the  said  recited 
act  it  is  also  enacted,  that  if  any  railway  or  portion  of  any 
railway  shall  be  opened  without  due  notice  as  aforesaid,  the 
company  to  whom  such  railway  shall  belong  shall  forfeit  to 
her  Majesty  the  sum  of  twenty  pounds  for  every  day  during 
which  the  same  shall  continue  open,  until  the  expiration  of 
one  calendar  month  after  the  company  shall  have  given  the 
like  notice  as  is  hereinbefore  required  before  the  opening  of 
the  railway,  and  any  such  penalty  maybe  recovered  in  any 
of  her  Majesty's  courts  of  record;  be  it  enacted,  that  the 
said  recited  provisions  of  the  said  act  shall  be  and  they  are 
hereby  repealed. 

IV.  That  no  railway  or  portion  of  any  railway  shall  be  intend^ed 
opened  for  the  public  conveyance  of  passengers  until    one  orening  o# 
calendar  montli  after  notice  in  writing  of  the  intention   of ''"''"'^y- 
opening  the  same  shall  have  been  given,  by  the  company  to 


XXX  Appendix — Statutes. 

whom  such  railway  shall  helong,  to  the  lords  of  the  com- 
mittee of  her  Majesty's  privy  council  appointed  for  trade 
and  foreign  plantations,  and  until  ten  days  after  notice  in 
writing  shall  have  been  given  by  the  said  company  to  the  lords 
of  the  said  committee  of  the  time  when  the  said  railway  or 
portion  of  railway  will  be,  in  their  opinion,  sufficiently  com- 
pleted for  the  safe  conveyance  of  passengers,  and  ready  for 
inspection. 
If  railway  V.  That  if  any  railway  or  portion  of  any  railway  shall  be 

opened  wuh-  opened  without  such  notice  as  aforesaid,   the  company  to 
company  to    whom  such  railway  shall  belong  shall  forfeit  to  her  Majesty 
forfeit  201.      the  sum  of  twenty  pounds  for  every  day  during  which  the 
same  shall  continue  open  until  the  said  notices  shall  have 
been  duly  given  and  shall  have  expired;    and  every  such 
penalty  may  be  recovered  in  any  of  her  Majesty's  courts  of 
record,  or  in  the  court  of  session  or  in  any  of  the  sheriff's 
courts  in  Scotland. 
Board  of  ^'I-  That  if  the  officer  or  officers  appointed  by  the  lords 

trade  em-  of  the  Said  committee  to  inspect  any  such  railway  or  portion 
powered  to^  ^f  railway  shall  after  inspection  thereof,  report  in  writing 
opening.  to  the  lords  of  the  said  committee  that,  in  his  or  their  opinion, 
the  opening  of  the  same  would  be  attended  with  danger  to 
the  public  using  the  same,  by  reason  of  the  incompleteness 
of  the  works  or  permanent  way,  or  the  insufficiency  of 
the  establishment  for  working  such  railway,  together  with 
the  grounds  of  such  opinion,  it  shall  be  lawful  for  the 
lords  of  the  said  committee,  and  so  from  time  to  time,  as 
often  as  such  officers  shall  after  further  inspection  thereof 
so  report,  to  order  and  direct  the  company  to  whom  such 
railway  shall  belong  to  postpone  such  opening  for  any  period 
not  exceeding  one  calendar  month  at  any  one  time,  until 
it  shall  appear  to  the  lords  of  the  said  committee  that  such 
opening  may  take  place  without  danger  to  the  public;  and 
if  any  such  railway,  or  any  portion  thereof,  shall  be  opened 
contrary  to  any  such  order  and  direction  of  the  lords  of  the 
said  committee,  the  company  to  whom  such  railways  shall 
belong  shall  forfeit  to  her  Majesty  the  sum  of  twenty  pounds 
for  every  day  during  which  the  same  shall  continue  open 
contrary  to  such  order  and  direction;  and  any  such  penalty 
may  be  recovered  in  any  of  lier  Majesty's  courts  of  record, 
or  in  tlie  court  of  session  or  in  any  of  the  sheriff's  courts  in 
Scotland:  provided  always,  that  no  such  order  as  aforesaid 
shall  be  binding  upon  any  railway  company  unless  therewith 
shall  be  delivered  to  the  said  company  a  copy  of  the  report 
of  the  officer  or  officers  on  which  such  order  shall  be 
founded. 


5  S(  6  Vict,  c.  55.  xxxi 

VII.  That  every  railway  company  shall,    within  forty-  Notice  of 
•1x1  r>x      xi  i-i  •!  11         •        accidents  to 

eight  hours  after  the  occurrence  upon  tlie  railway  belonging  ^e  gWen  to 

to  such  company  of  any  accident  attended  with  serious  per-  the  board  of 
sonal  injury  to  the  public  using  the  same,  give  notice  f^'^'^- 
thereof  to  the  lords  of  the  said  committee;  and  if  any  com- 
pany shall  wilfully  omit  to  give  such  notice  every  such  com- 
pany sliall  forfeit  to  her  Majesty  the  sum  of  five  pounds  for 
every  day  during  which  the  omission  to  give  the  same  shall 
continue;  and  every  such  penalty  may  be  recovered  in  any 
of  her  Majesty's  courts  of  record,  or  in  the  court  of  session 
or  in  any  of  the  sheriffs'  courts  in  Scotland. 

VIII.  That  the  lords  of  the  said  committee  may  order  Board  of 
and  direct  any  railway  company  to  make  up  and  deliver  to  p^vered  to 
them  returns  of  serious  accidents  occurring  in  the  course  of  direct 
the  public  traffic  upon  the  railway  belonging  to  such  com-  returns, 
pany,  whether  attended  with  personal  injury  or  not,  in  such 

form  and  manner  as  the  lords  of  the  said  committee  shall 
deem  necessary  and  require  for  their  information  with  a  view 
to  the  public  safety;  and  if  any  such  returns  shall  not  be  so 
delivered  within  fourteen  days  after  the  same  shall  have 
been  required,  every  such  company  shall  forfeit  to  her  Ma- 
jesty the  sum  of  five  pounds  for  every  day  during  which  the 
said  company  shall  neglect  to  deliver  the  same;  and  every 
such  penalty  may  be  recovered  in  any  of  her  Majesty's 
courts  of  record,  or  in  the  courts  of  session  or  in  any  of  the 
sheriffs'  courts  in  Scotland:  provided  always,  tliat  all  such 
returns  shall  be  privileged  communications,  and  shall  not  be 
evidence  in  any  court  whatsoever. 

IX.  And  whereas  by  an  act  passed  in  the  second  and  Gates  at 
third  years  of  her  present  Majesty,  and  intituled  "An  Act  jn^^V'^u"^" 
to  amend  an  Act  of  the  Fifth   and  Sixth  Years  of  his  late  kept  dosed 
Majesty  King  William  the  Fourth  relating  to  Highways,"  across  the 
it  was  enacted,  that  whenever  a  railway  crosses  or  shall  9  .i^,  3  Vict, 
hereafter  cross  any  turnpike  road,  or  any  other  highway  or  c.  45. 
statute  labour  road  for  carts  or  carriages  in  Great  Britain, 

the  proprietors  or  directors  of  the  said  railway  shall  make 
and  maintain  good  and  sufficient  gates  across  each  end  of 
such  turnpike  or  other  road  at  each  end  of  the  said  crossings, 
an'l  shall  employ  good  and  proper  persons  to  open  and  shut 
such  gates,  so  that  the  persons,  carts  or  carriages  passing 
along  such  turnpike  or  other  road  shall  not  be  exposed  to 
any  danger  or  damage  by  the  passing  of  any  carriages  or 
engines  along  the  said  railway:  and  whereas  by  tlie  acts 
relating  to  certain  railways  it  is  provided  that  such  gates 
shall  be  kept  constantly  closed  across  the  railway,  except 
during  the  time  when  carriages  or  engines  passing  along 


xxxii  Appendix — Statutes. 

the  railway  shall  have  to  cross  such  turnpike  or  other  road: 
and  whereas  experience  has  shown  that  it  is  more  con 
ductive  to  safety  that  such  gates  should  be  kept  closed  across 
the  turnpike  or  other  road  instead  of  across  the  railway  ;  be 
it  therefore  enacted,  that,  notwithstanding  any  thing  to  the 
contrary  contained  in  any  act  of  parliament  heretofore 
passed,  such  gates  shall  be  kept  constantly  closed  across 
each  end  of  such  turnpike  or  other  roads,  in  lieu  of  across 
the  railway,  except  during  the  time  when  horses,  cattle, 
carts  or  carriages  passing  along  such  turnpike  or  other 
road  shall  have  to  cross  such  railway;  and  such  gates  shall 
be  of  such  dimensions  and  so  constructed  as,  when  closed 
across  the  ends  of  such  turnpike  or  other  roads,  to  fence  in 
the  railway,  and  prevent  cattle  or  horses  passing  along  the 
road  from  entering  upon  the  railway  while  the  gates  are 
Proviso.  closed  :  provided  always,  that  it  shall  be  lawful  for  the 
lords  of  the  said  committee,  in  any  case  in  which  they  are 
satisfied  that  it  will  be  more  conducive  for  the  public  safety 
that  the  gates  at  any  level  crossing  over  any  such  turnpike 
or  other  road  should  be  kept  closed  across  the  railway,  to 
order  and  direct  that  such  gates  should  be  kept  so  closed, 
instead  of  across  the  road ;  and  such  order  of  the  lords  of 
the  said  committee  shall  be  a  sufficient  authority  for  the 
directors  or  proprietors  of  any  railway  company  to  whom 
such  order  is  addressed  for  keeping  such  gates  closed,  in 
the  manner  directed  by  the  lords  of  the  said  committee. 
Riiinaycom-  ^-  And  whereas  it  is  expedient  that  further  provision  be 
iianies  to  made  for  the  safety  of  the  public  in  respect  of  the  fences  of 
mai^nt'a^n  railways;  be  it  enacted,  that  all  railway  companies  shall  be 
fences.  Under  the  same  liability  of  obligation  to  erect,  and  to  main- 

tain and  repair,  good  and  sufficient  fences  throughout  the 
whole  of  their  respective  lines,  as  they  would  have  been  if 
every  part  of  such  fences  had  been  originally  ordered  to  be 
made  under  an  order  of  justices  by  virtue  of  the  provisions 
to  that  effect  in  the  acts  of  parliament  relating  to  such  rail- 
M-ays  respectively, 
nisputes  he-       XI.  That  where  two  or  more  railway  companies  whose 
riectine°"  >i   '■«i'l"'<iys  have  a  common  terminus  or  a  portion  of  the  same 
v.ty^  to  be     h'le  of  rails  in  common,  or  which  form  separate  portions  of 
decided  by     one  continued  line  of  railway  communication,  shall  not  be 
trade!  ""^         ^^^^  ^^  airree   upon   arrangements  for  conducting  at  such 
common  tormiiuis,  or  at  the  point  of  junction  between  them, 
their  joint  tratbc  with  safety  to  the  public,  it  shall  be  lawftd 
for  the  lords  of  the  said  committee,  upon  the  application  of 
either  of  the  parties,  to  decide  the  questions  in  dispute  l)e- 
tween  them,  so  far  as  the  same  relate  to  the  safety  of  the 


5  S(  G  Vict.  c.  55.  xjsxiii 

public,  and  to  order  and  determine  whether  the  whole  or 
what  proportion  of  the  expenses  attending  on  such  arrange- 
ments shall  be  borne  by  either  of  the  parties  respectively  ; 
and  if  any  railway  company  shall  refuse  or  wilfully  neglect 
to  obey  any  such  order  made  upon  or  against  such  company 
by  the  lords  of  the  said  committee  pursuant  to  this  provision, 
such  company  shall  forfeit  to  her  Majesty  the  sum  of  twenty 
pounds  per  day  for  every  day  during  which  such  refusal  or 
neglect  shall  continue;  and  every  such  penalty  may  be  re- 
covered in  any  of  her  Majesty's  courts  of  record,  or  in  the 
court  of  session  or  in  any  of  the  sheriffs'  courts  in  Scotland. 

XII.  And  whereas  powers  of  laying  down  branch  lines  Powers  of 
opening  into  the  ledges  or  Hanches  of  main  lines  of  railway,  making 
and  of  entering  upon  and  passing  along  such  main  lines  municatton^" 
with  carriages  and  waggons  drawn  by  locomotive  engines,  with  raii- 

or  by  other  mechanical  or  animal  power,  and  also  powers  ^^'^p-.  ^'^^  «' 

.  ,     .  ,         ^  entering 

to  form  roads  or  railways  across  existing  railways  on  a  upon  them 
level,  have  been  given  by  various  acts  relative  to  railways  withlocomo- 
to  the  owners  or  occupiers  of  lands  adjoining  the  railway,  Jo^be^regu!^' 
and  to  other  persons  with  their  consent :  and  whereas  ex-  lated  by  the 
perience  has  shown  that  the  exercise  of  such  powers  without  P^^''  °^ 
limitation  would  in  many  cases  be  attended  with  danger  to 
the  public  using  such  railway ;  be  it  therefore  enacted,  that 
if,  in  the  case  of  any  railway  on  which  passengers  are  con- 
veyed by  steam  or  other  mechanical  power,  it  shall  appear  to 
the  lords  of  the  said  committee  that  such  power  as  aforesaid 
caimot  be  so  exercised  without  seriously  endangering  the 
public  safety,  and  that  an  arrangement  may  be  made  with 
a  due  regard  to  existuig  rights  of  property,  it  shall  be  lawful 
for  the  lords  of  the  said  committee  to  order  and  direct  that 
such  powers  shall  only  be  exercised  subject  to  such  con- 
ditions as  the  lords  of  the  said  committee  shall  direct :  pro-  Defining  a 
vided  always,  that  no  railway  shall  be  considered  a  passenger  P^.^^enger 
railway  if  two-thirds  or  more  of  the  gross  annual  revenue 
of  such  railway  shall  be  derived  from  the  carriage  thereon 
of  coals,  ironstone,  or  other  metals  or  minerals. 

XIII.  And  whereas  in  many  cases  railways  liave  been  Alteration  of 
made  to  cross  turnpike  roads,  liighways,  and  private  roads  '^^"g^'"''"''^ 
and  tramways  on  the  level,  and  the  companies  to  whom  ings. 
such   railways  belong  would  in  some  cases  be  willing,  at 
their  own  expense,  to  carry  such  roads  and  tramways  over 
or  under  such  railways  by  means  of  a  bridge  or  archway 
for  the  greater  safety  of  tlie  public,  but  have  no  authority 
80  to  do  :  and  whereas  it  would  promote  the  public  safety  if 
railway  companies  were  enabled,  under  the  sanction  and  au- 
thority of  the  loi'dsof  the  said  committee,  to  substitute  bridges 
B  B  5 


xxxiv  Appendix — Statutes. 

or  archways  for  such  level  crossings  as  aforesaid  :  be  it  there- 
fore enacted,  that  in  all  cases  where  any  railway  company 
shall  be  willing,  at  their  own  expense,  to  carry  any  turn- 
pike road,  highway,  or  private  road  or  tramway  over  or 
under  their  railway  by  means  of  a  bridge  or  arch  in  lieu  of 
crossing  the  same  on  the  level,  it  shall  be  lawful  for  the 
lords  of  the  said  committee,  on  the  application  of  the  said 
company,  and  after  hearing  the  several  parties  interested,  if 
it  shall  appear  to  the  lords  of  the  said  committee  that  such 
level  crossing  endangers  the  public  safety,  and  that  the  pro- 
posal of  tlie  company  does  not  involve  any  violation  of  ex- 
isting rights  or  interests  witliout  adequate  compensation,  to 
give  the  said  company  full  power  and  authority  for  re- 
moving the  danger  at  their  own  expense,  either  by  building 
a  bridge,  or  by  such  other  arrangement  as  the  nature  of  the 
case  shall  require,  subject  to  such  conditions  as  the  lords  of 
the  said  committee  shall  direct. 
Power  for  XIV.  And  whereas  it  is  essential  for  the  public  safety, 

railway  com-  ^j^^j  jj|gQ  f^y  ^}jg  proper  maintenance  of  railways  in  a  state 
p&nicM  to  .  • 

enter  upon     of  efficiency  for  the  public  service,  that  railway  companies 

adjoining  should  have  the  power,  in  case  of  accidents  or  slips  hap- 
pa^r  acci-"^*^"  Pining  or  being  apprehended  to  their  cuttings  and  embank- 
dents.  ments  or  other  works,  to  enter  upon  the  lands  adjoining 

their  respective  railways,  for  the  purpose  of  repairing  or 
renewing  the  same,  and  to  do  such  works  as  may  be  neces- 
sary for  the  purpose ;  be  it  therefore  enacted,  that  it  shall 
be  lawful  for  the  lords  of  the  said  committee  to  empower 
any  railway  company,  in  case  of  any  accident  or  slip  hap- 
pening or  being  apprehended  te  any  cutting,  embankment 
or  other  work  belonging  to  them,  to  enter  upon  any  lands 
adjoining  their  railway  for  the  purpose  of  repairing  or  pre- 
venting such  accident,  and  to  do  such  works  as  may  be 
necessary  for  the  purpose  :  provided  always,  that  in  case  of 
necessity  it  sliall  be  lawful  for  any  railway  company  to 
enter  upon  such  lands  and  do  such  works  as  aforesaid, 
without  having  obtained  the  previous  sanction 'of  the  lords 
of  the  said  committee ;  but  in  every  such  case  such  railway 
company  shall,  within  forty-eight  hours  after  such  entry, 
make  a  report  to  the  lords  of  the  said  committee,  specifying 
the  nature  of  such  accident  or  apprehended  accident,  and 
of  the  works  necessary  to  be  done,  and  such  powers  shall 
cease  and  determine  if  the  lords  of  the  said  committee  shall, 
after  considering  the  said  report,  certify  that  their  exercise 
is  not  necessary  for  the  public  safety:  provided  also,  that 
such  works  shall  be  as  little  injurious  to  the  said  adjoining 
lands  as  the  nature  of  the  accident  or  apprehended  accident 


5  8f  6  Vict.  c.  55.  xxxv 

will  admit  of,  and  shall  be  executed  with  all  possible  des- 
patch ;  and  full  compensation  shall  be  made  to  the  owners 
and  occupiers  of  such  lands  for  the  loss  or  injury  or  incon- 
venience sustained  by  them  respectively  by  reason  of  such 
works,  the  amount  of  which  compensation,  in  case  of  any 
dispute  about  the  same,  shall  be  settled  in  the  same  manner 
as  cases  of  disputed  compensation  are  directed  to  be  settled 
by  the  acts  relating  to  the  railway  on  which  such  works 
may  become  necessary:  provided  always  that  no  land  shall 
be  taken  permanently  by  any  railway  company  for  such 
works  without  a  certificate  from  the  lords  of  the  said  com- 
mittee as  hereinafter  described. 

XV.  And  whereas  by  vai'ious  acts  relating  to  railways  Compulsory 
compulsory  powers  are  given  to  railway  companies  of  pur-  ?°K^^'^^*''^J 
chasing  and  taking  lands  for  the  construction  of  such  rail-  for  the  pur- 
ways,  and  it  is  provided  that  such  compulsory  powers  shall  poses  of 
not   be  exercised  after  the  expiration  of  certain  limited  gxtend^ed 
periods  from  the  passing  of  the  said  acts :  and  whereas  it  is  where 
sometimes  found  necessary  for  the  public  safety  that  ad-  thought  ne- 

*/  X  ^       ^»f  ccsssrv  for 

ditional  land  should  be  taken  after  the  expiration  of  such  safety  by  the 
periods  for  the  purpose  of  giving  increased  width  to  the  board  of 
embankments  and  inclination  to  the  slopes  of  railways,  or  t'"""'^- 
for  making  approaches  to  bridges  or  archways,  or  for  doing 
such  works  for  the  repair  or  prevention  of  accidents  as  are 
hereinbefore  described;  be  it  therefore  enacted,  that  in  every 
case  in  which  the  lords  of  the  said  committee  shall  certify 
that  the  public  safety  requires  additional  land  to  be  taken 
by  any  railway  company  for  such  purposes  as  aforesaid,  the 
compulsory  powers  of  purchasing  and  taking  land  con- 
tained in  the  act  or  acts  of  such  railway  company,  together 
with  all  the  clauses  and  provisions  relative  thereto,  shall,  as 
regards  such  portion  or  portions  of  land  as  are  mentioned 
in  the  certificate  of  the  lords  of  the  said  committee,  revive 
and  be  in  full  force  for  such  further  period  as  shall  be  men- 
tioned in  such  certificate :  provided  always,  that  any  rail- 
way company  applying  to  the  lords  of  the  said  committee 
for  any  such  certificate  shall  give  fourteen  days  notice  in 
writing,  in  the  manner  prescribed  by  the  act  or  acts  of  such 
company  for  serving  notices  on  land  owners,  of  their  in- 
tentiont  o  make  such  application  to  all  the  parties  interested 
in  such  lands,  or  such  of  them  as  shall  be  known  to  the 
company,  and  shall  state  in  such  notice  the  particulars  of 
the  lands  required ;  and  if  any  of  such  parties  interested 
shall  apply  within  tlie  said  period  of  fourteen  days  to  the 
lords  of  the  said  committee,  such  party  shall  be  heard  by 
them  before  any  such  certificate  is  given :   provided  also 


xxxvi  Appendix — Statutes. 

that  where  an)'  such  application  sliall  have  been  made  by 
any  railway  company  to  the  lords  of  the  said  committee, 
upon  which  application  an)' such  certificate  shall  have  been 
refused,  the  directors  of  such  railway  company  shall,  if  re- 
quired by  the  lords  of  the  said  committee,  repay  to  the 
party  resisting  such  application  any  expenses  which  he  or 
they  may  have  incurred  in  resisting  such  application. 
Carriages  of  XVI.  And  whereas  by  various  acts  relating  to  railways 
S""^^*^""  it  is  enacted,  that  no  carriage  or  waggon  shall  carry  or  bear 

fouf  tons''"    at  any  one  time  upon  the  railway  (including  the  weight  of 
may  be  used  such  carriage)  more  than  four  tons,   and  experience  has 
on  railways.  gijQwn  that  it  is  in  many  cases  more  conducive  to  safety  to 
use  a  heavier  description  of  carriage  or  waggon  upon  rail- 
ways than  was  originally  contemplated;    be  it  therefore 
enacted,  that  every  provision  contained  in  any  such  act  or 
acts  respectively  limiting  the  weight  to  be  carried  or  borne 
at  any  one  time  in  any  carriage  or  waggon  upon  any  rail- 
way (including  the  weight  of  such  carriage  or  waggon)  to 
four  tons  shall  be  and  the  same  is  hereby  repealed,  and  that, 
notwithstanding  any  thing  in  any  act  contained,  it  shall  be 
lawful  for  any  railway  company  to  use  and  to  permit  to  be 
used  upon  any  railway  carriages  or  waggons  carrying  or 
bearing  (including  the  weight  of  such  carriage)  a  greater 
weight  than  four  tons,  subject  to  such  regulations  as  may 
from  time  to  time  be  made  and  be  in  force  pursuant  to  any 
act  or  acts  of  parliament  already  or  hereafter  to  be  passed 
in  that  behalf. 
Punishment       XV 11.  And  whereas  by  the  said  recited  act  for  regulat- 
or persons     \j^^  railways,  provision  is  made  for  thepunishment  of  serv- 

employedon       ^        r        -i  •  -li.        r        •  j       i.  j   •..  • 

railways  «ints  ot  railway  companies  guilty  ot  misconduct,  and  it  is 
guiityof mis- expedient  to  extend  such  provision;  be  it  enacted  that  it 
conduct.  shall  be  lawful  for  any  officer  or  agent  of  any  railway  com- 
pany, or  for  any  special  constable  duly  appointed,  and  all 
such  persons  as  they  may  call  to  their  assistance,  to  seize 
and  detain  any  engine  driver,  waggon  driver,  guard,  porter, 
servant,  or  other  person  employed  by  the  said  or  by  any 
other  railway  company,  or  by  any  other  company  or  person, 
in  conducting  traffic  upon  the  railway  belonging  to  the  said 
company,  or  in  repairing  and  maintaining  the  works  of  the 
said  railway,  who  shall  be  found  drunk  while  so  employed 
upon  the  said  railway,  wlio  shall  commit  any  offence  against 
any  of  the  bye-laws,  rules,  or  regulations  of  the  said  com- 
pany, or  who  shall  wilfully,  maliciously,  or  negligently  do 
or  omit  to  do  any  act  whereby  the  life  or  limb  of  any  per- 
son passing  along  or  being  upon  such  railway  or  the  works 
thereof  respectively  shall  be  or  might  be  injured  or  endan- 


5  (S-  6  Vict.  c.  55.  xxxvii 

gered,  oi*  whereby  the  passage  of  any  engines,  carriages,  or 
trains  shall  be  or  might  be  obstructed  or  impeded,  and  to 
convey  such  engine  driver,  guard,  porter,  servant,  or  other 
person  so  offending,  or  any  person  counselUng,  aiding,  or 
assisting  in  sucli  ottence,  with  all  convenient  despatch  be- 
fore some  justice  of  the  peace  for  the  place  within  which 
such  offence  shall  be  committed,  without  any  other  warrant 
or  authority  than  this  act;  aud  every  such  person  so  offend- 
ing, and  everyperson  counselling,  aiding,  or  assisting  therein, 
as  aforesaid,  shall,  when  convicted  upon  the  oath  of  one  or 
more  credible  witness  or  witnesses  before  such  justice  as 
aforesaid  (who  is  hereby  authorized  and  required,  upon 
complaint  to  him  made  upon  oath,  without  information  in 
writing,  to  take  cognizance  thereof,  and  to  act  summarily 
in  the  premises),  in  the  discretion  of  such  justice,  be  im- 
piisoned,  with  or  without  hard  labour,  for  any  term  not 
exceeding  two  calendar  months,  or,  in  the  like  discretion  of 
such  justice,  shall  for  every  such  offence  forfeit  to  her  Ma- 
jesty any  sum  not  exceeding  ten  pounds,  and  in  default  of 
payment  thereof  shall  be  imprisoned,  with  or  without  hard 
labour,  as  aforesaid,  for  such  period,  not  exceeding  two 
calendar  months,  as  such  justice  shall  appoint,  such  com- 
mitment to  be  determined  on  payment  of  the  amount  of  the 
penalty;  and  every  such  penalty  shall  be  returned  to  the 
next  ensuing  court  of  quarter  sessions  in  the  usual  manner. 

XVIII.  That,  in  all  cases  in  which  by  the  present  or  the  ^,     .^   . 

.  ,  .      ,  „  ,     .  .,  •'..".,,.        Sheriff'*  to 

said  recited  act  tor  regulating  railways  it  is  provided  that  have  jurU- 

offenders  shall  betaken  before  one  or  more  justices  of  the  diction  in 
peace  for  the  place  within  which  the  offence  was  com- 
mitted, it  shall  be  lawful,  in  case  the  offence  is  committed 
in  Scotland,  to  take  such  offenders  before  the  sheriff  of  the 
county,  or  other  magistrate  acting  for  the  district  within 
which  such  offence  shall  be  committed,  or  where  such 
offender  sliall  be  apprehended,  without  any  warrant  or 
authority  other  than  this  act;  and  such  sheriff  or  magistrate 
is  hereby  empowered  and  required,  on  the  application  of 
the  railway  company,  to  proceed  in  all  respects  as  if  the 
words  "sheriff  or  magistrate"  had  been  substituted  for  the 
word  "justice"  in  the  said  acts,  and  shall  be  entitled  sum- 
marily, and  without  a  jury,  to  execute  the  powers  thereby 
and  hereby  committed  to  him. 

XIX.  That  all  notices,    returns,  and  other  documents 
required  by  this  act  or  by  the  said  recited  act  to  be  given  to  uonsT"a'iid: 
or  laid  before  the  lords  of  the  said  committee  shall  be  deli-  from  the 
vered  at  or  sent  by  the  post  to  the  office  of  the  lords  of  the  ''°"''''  '"^ . 
said  committee;    and  all  notices,  requisitions,  orders,  regu-  service  of 


xxxviii  Appendix — Statutes. 

notices,  &c.  latioiis,  appointments,  certificates,  certified  copies,  and  other 
compauy/  documents  in  writing,  signed  by  one  of  the  seci'etaries  of 
the  said  committee,  or  by  some  officer  appointed  for  that 
purpose  by  the  lords  of  the  said  committee,  and  purporting 
to  be  made  by  the  lords  of  the  said  committee,  shall,  foi 
the  purposes  of  this  and  of  the  said  recited  act,  be  deemed 
to  have  been  made  by  the  lords  of  tlie  said  committee,  and 
that  in  the  absence  of  evidence  to  the  contrary,  without 
proof  of  the  authority  of  the  person  signing  the  same  or  of 
the  signature  thereto;  and  service  of  the  same  at  one  of 
the  terminal  oftices  of  any  railway  company  on  the  secre- 
tary or  clerk  of  the  said  company,  or  by  sending  the  same 
by  post  addressed  to  him  at  such  office,  shall  be  deemed 
good  service  upon  the  said  company. 
Railway  XX.  That  whenever  it  shall  be  necessary  to  move  any  of 

companies     the  officers  or  soldiers  of  her  Majesty's  forces  of  the  line, 
mnitary°and  ordnance  corps,  marines,  militia,  or  the  police  force,  by 
police  forces  any  railway,  the  directors  thereof  shall  and  are  hereby  re- 
at  prices  to     quired  to  permit  such  forces  respectively,  with  their  bag- 
gage, stores,  arms,  ammunition,  and  other  necessaries  and 
things   to  be  conveyed  at  the  usual  hours  of  starting,  at 
such  prices  or  upon  such  conditions  as  may  from  time  to 
time  be  contracted  for  between  the  secretary  at  war  and 
such  railway  companies  for  the  conveyance  of  such  forces, 
on  the  production  of  a  route  or  order  for  their  conveyance 
signed  by  the  proper  authorities. 
Meaning  of       XXI.  That,  whenever  the  word  "  Railway"  is  used  in 
the  words       this  or  in  the  said  recited  act  it  shall  be  construed  to  apply 

"  ^".V^"^'     to  all  railways  used  or  intended  to  be  used  for  the  convey- 
ainl  '  Com-  „  ■'  .  .  ,  •  11    1 

pany."  ance  of  passengers  m  or  upon  carriages  drawn  or  impelfed 

by  the  power  of  steam  or  by  any  other  mechanical  power; 
and  whenever  the  word  "  Company  "  is  used  in  this  or  in 
the  said  recited  act  it  shall  be  construed  to  extend  to  and 
include  the  proprietors  for  the  time  being  of  any  such  rail- 
way, whether  a  body  corporate  or  individuals,  and  their 
lessees,  executors,  administrators,    and  assigns,,   unless  in 
either  of  the  above  cases  tlie  subject  or  context  be  repug- 
nant to  such  construction. 
Application        XXII.  That  all  penalties  under  this  act,  for  the  appli- 
ot  penalties-  nation  of  which  no  special  provision  is  made,  shall  be  i"e- 
covered   in  the  name  and  for  the  use  of  her  Majesty,   in 
the  manner  provided  by  the  said  recited  act  for  regulating 
railways. 
Act  may  be        XXIII.  That  this  act  may  be  amended  or  repealed  by 
repealed  this  any  act  to  be  passed  in  the  present  session  of  parliament. 


7  8(8  Vict.  c.  Sf). 


7  &  8  Vict.  c.  85. 

An  Act  to  attach  certain  Conditions  to  the  Construction 
of  future  Railways  authorized  or  to  be  authorized 
by  avy  Act  of  the  present  or  succeeding  sessions  of 
Parliament ;  and  for  other  Purposes  in  relation  to 
Railways.  [9th  August,  1844. J 

Wiif  REAS  it  is  expedient  that  the  concession  of  powers  for 
the  estabhshment  of  new  hnes  of  railway  should  be  subjected 
to  such  conditions  as  are  hereinafter  contained  for  the  benefit 
of  the  pubHc:  Be  it  enacted  by  the  Queen's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  lords 
spiritual  and  temporal,  and  commons,  in  this  present  par- 
liament assembled,  and  by  the  authority  of  the  same,  that  if 
at  any  time  after  the  end  of  twenty-one  years  from  and  If  after  21 
after  the  first  day  of  January  next  after  the  passing  of  any  f^e'^paasinV 
act  of  the  present  or  of  any  future  session  of  parliament  of  the  act 
for  the  construction  of  any  new  line  of  passenger  railway,  '""■  "'*'  ^°"' 
whether  such  new  line  be  a  trunk,  branch,  or  junction  line,  ^  Jy  future 
and  whether  such  new  line  be  constructed  by  a  new  com-  railway,  the 
pany  incorporated  for  the  purpose  or  by  any  existing  com-  ^l"^^^  "^ly^" 
pany,  the  clear  annual  profits  divisible  upon  the  subscribed  per  cent.,  ' 
and  paid  up  capital  stock  of  the  said  railway,  upon  the  ave-  the  Treasury 
rage  of  the  three  then  last  preceding  years,  shall  equal  or  [he^scale  0*^1 
exceed  the  rate  of  ten  pounds  for  every  hundred  pounds  of  toUs,  and  nx 
such  paid  up  capital  stock,  it  shall  be  lawful  for  the  lords  "  "'^"'  '^'^''^*^- 
commissioners  of  her  Majesty's  treasury,  subject  to  the  pro- 
visions hereinafter  contained,  upon  giving  to  the  said  com- 
pany three  calendar  months  notice  in  writing  of  their  in- 
tention so  to  do,  to  revise  the  scale  of  tolls,  fares  and  charges 
limited  by  the  act  or  acts  relating  to  the  said  railway,  and  to 
fix  such  new  scale  of  tolls,  fares,  and  charges  applicable  to 
sucli  different  classes  and  kinds  of  passengers,  goods  and 
other  traffic  on  such  railway,  as  in  the  judgment  of  the  said 
lords  commissioners,  assuming  the  same  quantities  and  kinds 
of  traffic  to  continue,  shall  be  likely  to  reduce  tlie  said  di- 
visible profits  to  the  said  rate  of  ten  pounds  in  the  hundred: 
Provided  always,  that  no  such  revised  scale  shall  take  effect.  Proviso, 
unless  accompanied  by  a  guarantee  to  subsist  as  long  as  any 
such  revised  scale  of  tolls,  fares  and  charges  shall  be  in 
force,  that  the  said  divisible  profits,  in  case  of  any  deficiency 
therein,  shall  be  annually  made  good  to  the  said  rate  often 


xl  Appendix— Statutes. 

pounds  for  every  hundred  pounds  of  such  capital  stock  : 
Provided  also,  that  such  revised  scale  sliall  not  be  again 
revised  or  such  guarantee  withdrawn,  otherwise  than  with 
the  consent  of  the  company,  for  the  further  period  of  twenty- 
one  years. 
Option  of  II.  That  whatever  may  be  the  rate  of  divisible  profits  on 

fut'ure'rail'^   any  such  railway,  it  shall  be  lawful  for  the  said  lords  corn- 
way,  missioners,  if  they  shall  think  fit,  subject  to  the  provisions 
hereinafter  contained,  at  any  time  after  the  expiration  of  the 
said  term  of  twenty-one  years,  to  purchase  any  such  rail- 
way, with  all  its  hereditaments,  stock  and  appurtenances, 
in  the  name  and  on  behalf  of  her  Majesty,  upon  giving  to 
the  said  company  three  calendar  months  notice  in  writing 
of  their  intention,  and   upon   payment  of  a  sum  equal  to 
twenty-five  years  purchase  of  the  said  annual  divisible  pro- 
fits, estimated   on  the  average  of  the  three  then  next  pre- 
Proviso.        ceding  years  :   Provided  that  if  the  average  rate  of  profits 
for  the  said  three  years  shall  be  less  than  the  rate  of  ten 
pounds  in  the  hundred,  it  shall  be  lawful  for  the  company, 
if  they  shall  be  of  opinion  that  the  said  rate  of  twenty-five 
years  purchase  of  the  said  average  profits  is  an  inadequate 
rate  of  purchase  of  such  railway,  reference  being  had  to 
the  prospects  thereof,  to  require  that  it  shall  be  left  to  arbi- 
tration, in  case  of  difference,  to  determine  what  (if  any) 
additional  amount  of  purchase  money  shall  be  paid  to  the 
said  company  :  Provided  also,  that  such  option  of  purchase 
shall  not  be  exercised,  except  with  the  consent  of  the  com- 
pany, while  any  such  revised  scale  of  tolls,  fares,  and  charges 
shall  be  in  force. 
Existing^  \\\^  Provided  always,  that  the  option  of  revision  or  pur- 
to'be'su'b-"°   chase  shall  not  be  applied  to  any  railway  made  or  authorized 
jected  to  the  to  be  made  by  any   act  previous  to  the  present  session  ; 
options.         jjj-jjj  j]-j,j^  j^g  branch  or  extension  of  less  than  five  miles  in 
length  of  any  such  line  of  railway  shall  be  taken  to  be  a 
new  railway  within  the  provisions  of  this  act;  and  that  the 
said  option  of  purchase  shall  not  be  exercised  as  regards 
any  branch  or  extension  of  any  I'ailway,  without  including 
such  railway  in  the  purchase,  in  case  the  proprietors  thereof 
shall  require  that  the  same  be  so  included. 
Reservation        IV.  And  whereas  it  is  expedient  that  the  policy  of  re- 
to  P^'y-       vision  or  purchase  shall  in  no  manner  be  prejudged  by  the 
considera-     provisions  of  this  act,  but  should  remain  for  the  future  con- 
tion  of  future  sideration  of  the  legislature,  u))on  grounds  of  general  and 
gald  to't")^'  national  policy  :   And  whereas  it  is  not  the  intention  of  this 
suid  options,  act  that  under  the  said  powers  of  revision  or  purchase,  if 
called  into  use,  the  public  resources  should  be  employed  to 
sustain  an  undue  competition  against  any  independent  com- 


7  <^  8  Vict.  c.  85.  xli 

panj'  or  companies ;  be  it  enacted,  that  no  such  notice 
as  hereinbefore  mentioned,  whether  of  revision  or  purchase, 
shall  be  given  until  provision  shall  have  been  made  by  par- 
liament, by  an  act  or  acts  to  be  passed  in  that  behalf,  for 
authorizing  the  guarantee  or  the  levy  of  the  purchase  money 
hereinbefore  mentioned,  as  the  case  may  be,  and  for  de- 
termining, subject  to  the  conditions  hereinbefore  mentioned, 
the  manner  in  which  the  said  options,  or  either  of  them, 
shall  be  exercised ;  and  that  no  bill  for  giving  powers  to 
exercise  the  said  options,  or  either  of  them,  shall  be  received 
in  either  house  of  parliament,  unless  it  be  recited  in  the  pre- 
amble to  such  bill  that  three  months  notice  of  the  intention 
to  apply  to  parliament  for  such  powers  has  been  given  by 
the  said  lords  commissioners  to  the  company  or  companies 
to  be  affected  thereby. 

V.  That  from  and  after  the  commencement  of  the  period 
of  three  years  next  preceding  the  period  at  which  the  op-  Accounts  to 
tion  of  revision  or  purchase  becomes  available,  full  and  true  tobeop'en'to 
accounts  shall  be  kept  of  all  sums  of  money  received  and  inspection, 
paid  on  account  of  any  railway  within  the  provisions  here- 
inbefore contained  (distinguishing,  if  the  said  railway  shall 
be  a  branch  railway  or  one  worked  in  common  with  other 
railways,  the  receipts,  and  giving  an  estimate  of  the  ex- 
pences  on  account  of  the  said  railway,  from  tliose  on  account 
of  the  trunk  line,  or  other  railways),  by  the  directors  of 
the  company  to  whom  such  railway  belongs,  or  by  whom 
the  same  may  be  worked ;  and  every  such  railway  com- 
pany shall  once  in  every  half-year  during  the  said  period  of 
three  years  cause  a  half-yearly  account  in  abstract  to  be  pre- 
pared, showing  the  total  receipt  and  expenditure  on  account 
of  the  said  railway  for  the  half-year  ending  the  thirtieth 
day  of  June  and  the  thirty-first  day  of  December,  respec- 
tively, or  such  other  convenient  days  as  shall  in  each  case 
be  directed  by  the  said  lords  commissioners  under  distinct 
heads  of  receipt  and  expenditure,  with  a  statement  of  the 
balance  of  such  account,  duly  audited  and  certified  under 
the  liands  of  two  or  more  directors  of  the  said  I'ailway  com- 
pany, and  shall  send  a  copy  of  the  said  account  to  the  said 
lords  commissioners  on  or  before  the  last  days  of  August  and 
February,  respectivel}',  or  such  other  days  as  shall  in  each 
case  be  directed  by  tlie  said  lords  commissioners,  in  each 
year;  and  it  shall  be  lawful  for  the  said  lords  commission- 
ers, if  and  when  they  shall  think  fit,  to  appoint  any  proper 
person  or  persons  to  inspect  the  accounts  and  books  of  the 
said  company  during  the  said  period  of  three  years;  and  it 
sliall  be  lawful  for  any  person  so  aiithorized,  at  all  reason- 
able times,  upon  producing  his  authority,  to  examine  the 


xlii  Appendix — Statutes. 

% 
books,  accounts,  vouchers,  and  other  documents  of  the  com- 
pany at  the  principal  office  or  place  of  business  of  the  com- 
pany, and  to  take  copies  or  extracts  therefrom. 

VI.  And  whereas  it  is  expedient  to  secure  to  the  poorer 
class  of  travellers  the  means  of  travelling  by  railway  at 
Companies  moderate  fares,  and  in  carriages  in  which  they  may  be  pro- 
to  provide  tected  from  the  weather ;  be  it  enacted,  that  on  and  after 
train  each  *^^  several  days  hereinafter  specified,  all  passenger  railway 
way  daily,  companies  which  shall  have  been  incorporated  by  any  act 
of  the  present  session,  or  which  shall  be  hereafter  incorpo- 
rated, or  which  by  any  act  of  the  present  or  any  future 
session  have  obtained  or  shall  obtain,  directly  or  indirectly, 
any  extension  or  amendment  of  the  powers  conferred  on 
them  respectively  by  their  previous  acts,  or  have  been  or 
shall  be  authorized  to  do  any  act  unauthorized  by  the  pro- 
visions of  such  previous  acts,  shall,  by  means  of  one  train, 
at  the  least,  to  travel  along  their  railwaj'  from  one  end  to 
the  other  of  each  trunk,  branch,  or  junction  line,  belonging 
to  or  leased  by  them,  so  long  as  they  shall  continue  to  carry 
otlier  passengers  over  such  trunk,  branch,  or  junction  line, 
once  at  the  least  each  way  on  every  week  da)',  except 
Christmas  day  and  Good  Friday  (such  exception  not  to  ex- 
tend to  Scotland),  provide  for  the  conveyance  of  third  class 
passengers  to  and  from  the  terminal  and  other  ordinary  pas- 
senger stations  of  the  railway,  under  the  obligations  con- 
tained in  their  several  acts  of  parliament,  and  with  the 
immunities  applicable  by  law  to  carriers  of  passengers  by 
railway  ;  and  also  under  the  following  conditions  (that  is 
to  say) : 

Such  train   shall  start  at  an  hour  to  be  from  time  to 
time  fixed  by  the  directors,  subject  to  the  approval  of 
the  lords  of  the  committee  of  privy  council  for  trade 
and  plantations: 
Such  train  shall  travel  at  an  average  rate  of  speed 
not  less  than  twelve  miles  an  hour  for  the  whole  dis- 
tance travelled  on  the  railway,  including  stoppages  : 
Such  train  shall,  if  required,  take  up  and  set  down  pas- 
sengers at  every  passenger  station  which  it  shall 
pass  on  the  line  : 
The  carriages  in  which  passengers  shall  be  conveyed 
by  such  train  shall  be  provided  with  seats,  and  shall 
be  protected  from  the  weather,  in  a  manner  satisfac- 
tory to  the  lords  of  the  said  committee. 
The  fare  or  charge  for  each  third  class  passenger  by 
such  train  shall  not  exceed  one  penny  for  each  mile 
travelled : 


7  8(  SYict.  C.S5.  xliii 

Each  passenger  by  such  train  shall  be  allowed  to  take 
with  him  half  a  hundred  weight  ofluggage,  not  being 
merchandize  or  other  articles  carried  for  hire  or  pro- 
fit, without  extra  charge ;  and  any  excess  of  luggage 
shall  be  charged  by  weight,  at  a  rate  not  exceeding 
the  lowest  rate  of  charge  for  passengers'  luggage  by 
other  trains : 
Children  under  three  years  of  age  accompanying  pas- 
sengers by  such   train  shall  be  taken  without  any 
charge;  and  children  of  three  years  and  upwards, 
but  under  twelve  years  of  age,  at  half  the  charge 
for  an  adult  passenger : 
And  with  respect  to  all  railways  subject  to  these  obligations 
which  shall  be  open  on  or  before  the  first  day  of  November 
next,  these  obligations  shall  come  into  force  on  the  said  first 
day  of  November;  and  with  respect  to  all  other  railways 
subject  to  these  obligations,  they  shall  come  into  force  on 
the  day  of  opening  of  the  railway,  or  the  day  after  the  last 
day  ot   the  session  in  which  the   act  shall  be  passed,  by 
reason  of  which  the  company  will  become  subject  there- 
unto, which  shall  first  happen. 

VII.  That  if  any  railway  company  shall  refuse  or  wilfully 
neglect  to  comply  with  the  provisions  of  this  act  as  to  the 
said  cheap  trains  within  a  reasonable  time,  or  shall  attempt 
to  evade  the  operation  of  such  order,  such  company  shall  Penalty  for 
forfeit  to  her  Majesty  a  sum  not  exceeding  twenty  pounds  "^"-conipli- 
for  every  day  during  which  such  refusal,  neglect,  or  evasion 
shall  continue. 

VIII    Provided  always,  and  be  it  enacted,  That  except 
as  to  the  amount  of  fare  or  charge  for  each  passenger  by 
such  cheap  trains,  wdiich  shall  in  no  case  exceed  the  rates 
herein-before   in   such  case  provided,  the  lords  of  the  said  Board  of 
committee  shall  have  a  discretionary  ])ower,  upon  the  appli-  '""^'^^  '° 
cation   of  any  railway  company,  of  dispensing  with  any  cretionary" 
of  the   conditions  herein-before  required  in  regard  to  the  power  of 
conveyance  of  passengers  by  such  cheap  trains  as  aforesaid,  ai'J°Jn'aUve 
in  consideration  of  such  other  arrangements,  either  in  regard  arrange- 
to  speed,  covering  from  the  weather,  seats,  or  other  particu-  ments. 
lars,  as  to   the  lords  of  the  said  committee  shall  appear 
more  beneficial  and  convenient  for  the  passengers  by  such 
cheap  trains  under  the  circumstances  of  the  case,  and  shall 
be  sanctioned  by  them  accordingly ;  and  any  railway  com- 
pany which  shall  conform  to  such  other  conditions  as  shall 
be   so  sanctioned  by  tlie  lords  of  the  said  committee  shall 
not  be  liable  to  any  jjcnalty  for  not  observing  the  conditions 
which  shall  have  been  so  dispensed  with  by  the  lords  of  the 


xliv  Appendix — Statutes. 

said  committee  in  regard  to  the  said  cheap  trains  and  the 

passengers  conveyed  thereby. 
When  no  tax       IX.  That  no  tax  (e)  shall  be  levied  upon  the  receipts  of 
o   e  evied.  ^ny  railway  company  fromthe  conveyance  of  passengers  at 

fares  not  exceeding  one  penny  for  each  mile  by  any  such 

cheap  train  as  aforesaid. 
WTiere  corn-  ^-  That  whenever  any  railway  com.pany  subject  to  the 
paiiies  run  herein-before-mentioned  obligation  of  running  cheap  trains 
Sunday"  "^^  shall,  from  and  after  the  days  herein-before  specified  on 
cheap  trains  which  the  Said  obligation  is  to  accrue,  run  any  train  or 
to  be  tike-  trains  on  Sundays  for  the  conveyance  of  passengers,  it 
vided.  shall,  under  the  obligations  contained  in  its  act  or  acts  of 

parliament,  and  with  the  immunities  applicable  by  law  to 

carriers  of  passengers  by  railway,  by  such  train  each  way, 

on  every  Sunday,  as  shall  stop  at  the  greatest  number  of 

(e)  This  tax  is  now  5  percent,  upon  the  fares.  It  is  under  the 
management  of  the  commissioners  of  stamps  and  taxes,  and  is 
to  be  deemed  a  stamp  duty  (5  &  6  Vict.  c.  79,  s.  2).  That 
act,  s.  1 ,  repeals  the  duties  granted  by  2  &  3  Will.  4,  c.  120,  in 
respect  of  railway  passengers. 

Railway  proprietors,  &c.,  are  to  keep  an  account  of  all 
monies  received  or  charged  by  them  daily  for  the  conveyance  of 
passengers,  whether  upon  their  own  or  other  railways,  and 
this  in  such  manner  and  form  as  the  commissioners  of  stamps 
and  taxes  may  direct  or  approve.  They  are  also  to  keep  like 
accounts  of  sums  paid  or  accounted  for,  &c.,  to  such  other  rail- 
ways, as  their  share  of  the  fiires  (sec.  4) ;  as  is  also  to  be  done 
by  the  proprietors  of  the  latter  with  regard  to  all  sums  paid  or 
accounted  for  to  them.  Copies  of  such  accounts  are  to  be 
delivered  to  the  commissioners  of  stamps  and  taxes,  within 
five  days  after  the  first  Monday  in  every  calendar  month, 
verified  by  affidavit,  and  the  duties  are  to  be  paid  accordingly 
(sec.  4).  Sums  paid  for  duties  upon  fares  of  other  railway 
companies  may  be  deducted  from  the  payments  made  to 
them  (s.  5).  Jiooks  containing  such  accounts  are  to  be  open 
for  the  inspection  of  officers  of  stamps,  who  are  to  be  at 
liberty  to  make  extracts,  &c.,  and  the  railway  company  must 
permit  such  inspection,  &c.,  under  a  penalty  of  £50  for  each 
refusal  (sec.  6);  railway  proprietors,  &c.,  before  they  carry 
passengers,  are  to  give  bond  with  sureties  conditioned  for 
securing  the  compliance  with  these  provisions  under  a  penalty 
of  £100,  and  a  like  further  penalty  for  every  day  during  the 
period  that  the  omission,  &c.,  continues.  Simdar  penalties  are 
inflicted  on  companies  permitting  other  companies  to  carry  on 
their  line  without  first  giving  such  bond,  &c.  The  bond  in 
certain  cases  must  be  renewed  under  the  pain  of  like  penalties 
in  cases  of  refusal,  ace.  (sect.  7). 


7  .^  8  Vict.  c.  85.  xlv 

stations,  provide  sufficient  carriages  for  tlie  conveyance  of 
third  class  passengers  at  the  terminal  and  other  stations  at 
which  such  Sunday  train  may  ordinarily  stop ;  and  the  fare 
or  charge  for  each  third  class  passenger  hy  such  train  shall 
not  exceed  one  penny  for  each  mile  travelled. 

XI.  And  whereas  by  an  act  passed  in  the  second  year  Railway 
of  the  reign  of  her  Majesty,  intituled  '•  An  Act  to  provide  companies  to 
for  the  Conveyance  of  the  Mails  by  Railways,  "  provision  tional  facili- 
was  made  for  the  transmission  of  the  mails  by  railwaj-,  and  ties  for  the 
it  is  expedient  that  such   provision  should  be  extended  :  t^nsmission 
1        •  1    mi  •       1     II  1      1        p  1  /■        1  of  the  mails. 

be   it  enacted,  Ihat  it  snail  be  lavvrul  for  the  postmaster-  i  &  2  Vict. 

general  to  require,  in  the  manner  and  subject  to  the  condi-  ^-  ^^^ 
tions  as  to  payment  for  service  performed  prescribed  by  the 
said  act,  that  the  mails  be  forwarded  upon  any  such  railvva}' 
as  is  herein-before  last  mentioned  at  any  rate  of  speed  which 
the  inspector-general  of  railways  for  the  time  being  shall 
certify  to  be  safe,  not  exceeding  twenty-seven  miles  in  the 
hour  including  stoppages  ;  and  it  shall  be  also  lawful  for 
the  postmaster-general  to  send  any  mail  guard  with  bags 
not  exceeding  the  weight  of  luggage  allowed  to  any  other 
passenger  (or  subject  to  the  general  rules  of  the  company 
for  any  excess  of  that  weight)  by  any  trains  other  than  a 
mail  train,  upon  the  same  conditions  as  any  other  passen- 
ger; provided  that  in  such  last-mentioned  case  nothing 
herein  or  in  the  last  recited  act  contained  shall  be  construed 
to  authorize  the  postmaster-general  to  require  the  conver- 
sion of  a  regular  mail  train  into  an  ordinary  train,  or  to 
exercise  any  control  over  the  company  in  respect  of  any 
ordinary  train,  nor  shall  the  company  be  responsible  for 
the  safe  custody  or  delivery  of  any  mail  bags  so  sent. 

XII.  And  whereas  by  an  act  passed  in  the  sixth  year  of  ^"taincom- 
the  reign  of  her  Majesty,  intituled  "  An  Act  for  the  better  convey  mi- 
Regulation    of    Railways,    and    for    the    Conveyance    of  litary  and 

Troops,"  it  was  among  other  things  enacted,  that  whenever  po'l^e  forces 
.      ,   ',,  ,  °  /•    1         n^  IT         at  certain 

it  shall  be  necessary  to  move  any  ot  the  oiticers  or  soldiers  charges,  5  & 
of  her  Majesty's  forces  of  the  line,  ordnance  corps,  marines,  ^  Vict.  c.  5.5. 
militia,  or  the  police  force,  by  any  railway,  the  directors 
thereof  shall  and  are  hereby  required  to  permit  such  forces 
respectivelj',  with  their  baggage,  stores,  arms,  ammunition, 
and  other  necessaries  and  things,  to  be  conveyed  at  the 
usual  hours  of  starting,  at  such  prices  or  upon  such  condi- 
tions as  may  from  time  to  time  be  contracted  for  between 
the  secretary  at  war  and  such  railway  companies  for  the 
conveyance  of  such  forces,  on  the  production  of  a  route  or 
order  for  their  conveyance  signed  by  the  proper  authorities: 
And  whereas  it  is  expedient  to  amend  such  provisions  in 
regard  to  the  prices  and  conditions  of  conveyance  by  any 


ixvi  Appendix — Statutes. 

new  railway  or  any  railway  obtaining  new  powers  from 
parliament;  be  it  enacted,  That  all  railway  companies 
which  have  been  or  shall  be  incorporated  by  any  act  of  the 
present  or  any  future  session,  or  which  by  any  act  of  the 
present  or  any  future  session  shall  have  obtained  or  shall 
obtain  any  extension  or  amendment  of  the  powers  conferred 
by  their  previous  acts  or  any  of  them,  or  have  been  or  shall 
be  authorized  to  do  any  act  unauthorized  by  the  provisions 
of  such  previous  acts,  shall  be  bound  to  provide  such  con- 
veyance as  aforesaid  for  the  said  military,  marine,  and  police 
forces,  at  fares  not  exceeding  two-pence  per  mile  for  each 
commissioned  oflicer  proceeding  on  duty,  such  officer  being 
entitled  to  conveyance  in  a  first  class  carriage,  and  not 
exceeding  one  penny  for  each  mile  for  each  soldier,  marine, 
or  private  of  the  militia  or  police  force,  and  also  for  each 
wife,  widow,  or  child  above  twelve  years  of  age  of  a  soldier 
entitled  by  act  of  parliament  or  by  competent  authority  to 
be  sent  to  their  destination  at  the  public  expense,  children 
under  three  years  of  age  so  entitled  being  taken  free  of 
charge,  and  children  of  three  years  of  age  or  upwards, 
but  under  twelve  years  of  age,  so  entitled,  being  taken  at 
half  the  price  of  an  adult;  and  such  soldiers,  marines,  and 
privates  of  the  militia  or  police  force,  and  their  wives, 
widows,  and  children  so  entitled,  being  conveyed  in 
carriages  which  shall  be  provided  with  seats,  with  sufficient 
space  for  the  reasonable  accommodation  of  the  persons 
conveyed,  and  which  shall  be  protected  against  the  weather; 
provided  that  every  officer  conveyed  shall  be  entitled  to 
take  with  him  one  hundred  weight  of  personal  luggage 
without  extra  charge,  and  every  soldier,  marine,  private, 
wife,  or  widow,  shall  be  entitled  to  take  with  him  or  her 
half  a  hundred  weight  of  personal  luggage  without  extra 
charge,  all  excess  of  the  above  weights  of  personal  luggage 
being  paid  for  at  the  rate  of  not  more  than  one  half-penny 
per  pound,  and  all  public  baggage,  stores,  arms,  ammuni- 
tion, and  other  necessaries  and  things  (except  gunpowder 
and  other  combustible  matters,  which  the  company  shall 
only  be  bound  to  convey  at  such  prices  and  upon  such 
conditions  as  may  be  from  time  to  time  contracted  for 
between  the  secretary  at  war  and  the  company),  shall  be 
conveyed  at  charges  not  exceeding  two  pence  per  ton  per 
mile,  the  assistance  of  the  military  or  other  forces  being 
given  in  loading  and  unloading  such  goods. 
Companies  XIII.  And  whereas  electrical  telegraphs  have  been 
toallowiines  gjjtalj^gljg^  on  certain  railways,  and  may  be  more  exten- 
o  e  ec  nca    ^j^^jy  established  hereafter,  and  it  is  expedient  to  provide 


7  8<  8  Vict.  c.  85.  Ixvii 

for  their  due  regulation  ;  be  it  enacted,  That  every  railway  telegraph  to 
company,  on  being  required  so  to  do  by  the  lords  of  the  bfjg'^^ej' 
saidcomniittee,  shall  be  bound  to  allow  any  person  or  per- 
sons authorized  by  the  lords  of  the  safd  committee,  with 
servants  and  workmen,  at  all  reasonable  times  to  enter  into 
or  upon  their  lands,  and  to  establish  and  lay  down  upon 
such  lands  adjoining  tlie  line  of  such  railway  a  line  of 
electrical  telegraph  for  her  Majesty's  service,  and  to  give 
to  him  and  them  every  reasonable  facility  for  laying  down 
the  same,  and  for  using  the  same  for  the  purpose  of  receiv- 
ing and  sending  messages  on  her  Majesty's  service,  subject 
to  such  reasonable  i-emuneration  to  the  company  as  maybe 
agreed  upon  between  the  company  and  the  lords  of  the  said 
committee,  or  in  case  of  disagreement  as  may  be  settled  by 
arbitration  :  provided  always,  that,  subject  to  a  prior  right 
of  use  thereof  for  the  purposes  of  her  Majesty,  such  tele- 
gi'aph  may  be  used  by  the  company  for  the  purposes  of  the 
railway,  upon  such  terms  as  may  be  agreed  upon  between 
the  parties,  or  in  the  event  of  ditTerence,  as  may  be  settled 
by  arbitration. 

XIV.  That  where  a  line  of  electrical  telegraph  shall  Electrical 
have  been  established  upon  any  railway  by  the  company  to  established 
whom  such  railway  belongs,  or  by  any  company,  partner-  by  private 
ship,  person  or  persons,  otherwise  than  exclusively  for  her  ^^'*'^^^  "i^ig^ 
Majesty's  service,  or  exclusively  for  the  purposes  of  the  public, 
railway,  or  jointly  for  both,  the  use  of  such  electrical  tele- 
graph for  the  purpose  of  receiving  and  sending  ftiessages, 
shall,  subject  to  the  prior  right  of  use  thereof  for  the  service 
of  her  Majesty  and  for  the  purposes  of  the  company,  and 
subject  also  to  such  equal  charges  and  to  such  reasonable 
regulations  as  may  be  from  time  to  time  made  by  the  said 
railway  company,  be  open  for  the  sending  and  receiving 
of  messages  by  all  persons  alike,  without  favour  or  pre- 
ference. 

XV.  And  whereas  by  an  act  passed  in  the  fourth  year  Appoint- 
of  the  reign  of  her  Majesty,  intituled  "An  Act  to  regulate  ^ecto«b"y 
Railways,"  power  is  given   to  the  lords  of  the  said  com-  board  of 
mittee  to  appoint  any  proper  person  or  persons  to  inspect  ^Tf"^^'  ^  ^  ■* 
any  railway,  and  the  stations,  works,  and  buildings,  and 
the  engines  and  carriages  belonging  thereto ;  and  in  order 
to  carry  the  provisions  of  this  act  into  execution,  it  is  ex- 
pedient that  the  said  power  be  extended ;  be  it  enacted, 
That  the  said  power  given  to  the  lords  of  the  said  com- 
mittee of  appointing  proper  persons   to  inspect  railways 
shall  extend  to  authorize  the  appointment  by  the  lords  of 
the  said  committee  of  any  proper  person  or  pei'sons,  for 


xlviii 


Repealing 
provision  of 
3  &  4  Vict, 
c.  y;. 


If  railway 
companies 


Appendix — Statutes. 

such  purposes  of  inspection  as  are  by  the  said  act  autho- 
rized, and  also  for  the  purpose  of  enabling  the  lords  of 
the  said  committee  to  carry  the  provisions  of  this  and  of 
the  said  act  and  of  any  general  act  relating  to  railways 
into  execution  ;  and  that  so  much  of  the  last-recited  act  as 
provides  that  no  person  shall  be  eligible  to  the  appointment 
as  inspector  who  shall,  within  one  year  of  his  appointment, 
have  been  a  director,  or  have  held  any  office  of  trust  or 
profit  under  any  railway  company,  shall  be  repealed : 
provided  always,  that  no  person  to  be  appointed  as  afore- 
said shall  exercise  any  powers  of  interference  in  the  affairs 
of  the  company. 

XVI.  And  whereas  by  the  said  act  of  the  fourth  year  of 
the  reign  of  her  Majesty,  intituled  "An  Act  for  regulating 
Railways,"  it  is  among  other  things  enacted,  that  whenever 
it  shall  appear  to  the  lords  of  the  said  committee  that  any 
of  the  provisions  of  the  several  acts  of  parliament  regulating 
any  railway  companies,  or  the  provisions  of  that  act,  have 
not  been  complied  with  on  the  part  of  any  of  the  said 
companies  or  au}^  of  their  officers,  and  that  it  would  be  for 
the  public  advantage  that  the  due  performance  of  the  same 
should  be  enforced,  the  lords  of  the  said  committee  shall 
certify  the  same  to  her  Majesty's  attorney-general  for  Eng- 
land or  Ireland,  or  to  the  lord  advocate  for  Scotland,  as  the 
case  may  require  ;  and  thereupon  the  said  attorney-general 
or  lord  advocate  shall,  by  information,  or  by  action,  bill, 
plaint,  suit  at  law  or  in  equity,  or  other  legal  proceeding 
(as  the  case  may  require),  proceed  to  recover  such  penalties 
and  forfeitures,  or  otherwise  to  enforce  the  due  performance 
of  the  said  provisions,  by  such  means  as  any  person 
aggrieved  by  such  non-compliance,  or  otherwise  authorized 
to  sue  for  such  penalties,  might  employ  under  the  pro- 
visions of  the  said  acts ;  provided  always  that  no  such 
certificate  as  aforesaid  shall  be  given  by  the  lords  of  the 
said  committee  until  twentj'-one  days  after  they  shall  have 
given  notice  of  their  intention  to  give  the  same  to  the  com- 
pany against  or  in  relation  to  whom  they  shall  intend  to 
give  the  same :  and  whereas  it  is  expedient  that  more 
effectual  provision  should  be  made,  not  only  for  enforcing 
a  compliance  on  the  part  of  railway  companies  with  the 
provisions  of  their  acts,  but  also  for  restraining  railway 
companies  from  perfonning  acts  unauthorized  by  such  pro- 
visions ;  be  it  enacted,  That  so  much  of  the  said  act  as  is 
herein-before  recited  shall  be  repealed. 

XVII.  That  whenever  it  shall  appear  to  the  lords  of  the 
said  committee   that  any  of  the  provisions  of  the  several 


7  .^  8  Vict.  c.  85.  xlix 

acts  of  parliament  regulating  any  railway  company,  or  the  contravene 
provisions  of  this  act  or  of  any  general  act  relating  to  rail-  the^provi- 
ways,  have  not  been  complied  with  on  the  part  of  any  rail-  sions  of  their 
way   company  or  any  of  its  officers,  or  that  any  railway  ^^'^'  "j^  °^^ 
company  has  acted  or  is  acting  in  a  manner  unauthorized  act,  the 
by  the  provisions  of  the  act  or  acts  of  parliament  relating  to  board  of 
snch  railway,  or  in  excess  of  the  powers  given  and  objects  '/J'r  iffy  "the 
defined  by  the  said  act  or  acts,  and  it  shall  also  appear  to  same  to  the 
the  lords  of  the  said  committee  that  it  would  be  for  the  ^""J'"^^/^" 
public  advantage  that  the  company  should  be  restrained  from  „ho  shall" 
so  acting,  the  lords  of  the  said  committee  shall  certify  the  proceed 
same  to  her  Majesty's  attorney-general  for  England  or  Ire-  tfemf' 
land,  or  to  the  lord  advocate  for  Scotland,  as  the  case  may 
require ;  and  thereupon  the  said  attorney-general  or  lord 
advocate  sliall,  in  case  such  default  of  the  railway  company 
shall  consist  of  non-compliance  with  the  provisions  of  the 
act  or  acts  relating  thereto  or  of  tliis  act,  or  of  any  general 
act  relating  to  railways,  proceed  by  information,  or  by  ac- 
tion, bill,  plaint,  suit  at  law  or  in  equity,  or  other  legal  pro- 
ceeding, as  the  case  may  require,  to  recover  such  penalties 
and  forfeitures,  or  otherwise  to  enforce  the  due  performance 
of  the  said  provisions,  by  such  means  as  any  person  ag- 
grieved by  such  non-compliance,  or  otherwise  authorized  to 
sue  for  such  penalties,  might  employ  under  the  provisions 
of  the  said  acts ;  and  in  case  the  default  of  the  railway  com- 
pany shall   consist  in   the  cominission  of  some  act  or  acts 
unauthorised  by  law,  then  the  said  attorney-general  or  lord 
advocate,  upon  receiving  such  certificate  as  aforesaid,  shall 
proceed  by  suit  in  equity,  or  such  other  legal  proceeding  as 
the  nature  of  the  case  may  require,  to  obtain  an  injunction 
or  order  (which  the  judge  in  equity  or  other  judge  to  whom 
the  application  is  made  shall  be  authorized  and  required  to 
grant,  if  he  shall  be  of  opinion  that  the  act  or  acts  of  the 
railway  company  complained  of  is  or  are  not  authorized  by 
law),  to  restrain  the  company  from  acting  in  such  illegal 
manner,  or  to  give  such  other  relief  as  the  nature  of  the 
case  may  require. 

XVIII.   Provided   always,  and  be  it  enacted,   that  no  Notice  to  be 

sucli  certificate   as  aforesaid  shall  be  given  by  the  lords  of  S"'^"  '°  **^^ 
1  •  1  •  •!  1  !•         1  1     11  company, 

the   said   committee  until  twenty-one  clays  after  tney  snail 

have  given  notice  to  the  company  against  or  in  relation  to 

whom  they  shall  intend  to  give  such  certificate  of  their 

intention  to  give  such   certificate  ;  and  that  no  legal  pro-  Prosecutions 

ceedings  shall   be   commenced  under  the  authority  of  the  Ji!A^„"!!.'^" 
,      1      °„     ,  .  ,  .  .  .,  ■^  the  sanction 

lords   01  the  said  committee  against  any  railway  company  of  the  board 

for  any   offence  against  any  of  the  several  acts  relating  to  of  trade,  and 

c  c 


1  I  Appendix — Statutes. 

within  one     railways  or  this  act,  or  any  general  acts  relating  to  railways, 
offen'eef'^'  ^  except  i3pon  such  certificate  of  the  lords  of  the  said  com- 
mittee as  aforesaid,  and  within  one  year  after  such  oiFence 
shall  have  been  committed. 
Issue  of  loan      XIX.  And  whereas  many  railway  companies  have  bor- 
notesand       rowed  money  in  a  manner  unauthorized  by  their  acts  of 
securitiet^by  incorporation   or  other  acts  of  parliament  relating  to  the 
railway  com- said  companies,  upon   the   security  of  loan  notes  or  other 
P?"'"  P''°"    instruments  purporting  to  give  a  security  for  the  repayment 
of  the  principal  sums  borrowed  at  certain  dates,  and  for  the 
payment  of  interest  thereon  in  the  meantime  :  and  whereas 
such  loan  notes  or  other  securities  issued  otherwise  than 
under  the  provision  of  some  act  or  acts  of  parliament  have 
no  legal  validity,  and  it  is  expedient  that  the  issue  of  such 
illegal  securities  should  be  stopped;  but  such  loan  notes  or 
other  securities  having  been  issued  and  received  in  good 
faith  as  between  the  borrower  and  lender,  and  for  the  most 
part  for  the  lawful  purposes  of  the  undertaking,  and  in  ig- 
norance of  their  legal  invalidity,  it  is  expedient  to  confirm 
such  as  have  been  already  issued ;  be  it  enacted,  that  from 
and  after  the  passing  of  this  act  any  railway  company  issu- 
ing any  loan  note  or  other  negotiable  or  assignable  instru- 
ment purporting  to  bind  the  company  as  a  legal  security 
for  money  advanced  to  the  said  railway  company  otherwise 
than  under  the  provisions  of  some  act  or  acts  of  parliament 
authorizing  the  said  railway  company  to  raise  such  money 
and  to  issue  such  security,  shall  for  every  such  offence  for- 
feit to  her  Majesty  a  sum  equal  to  the  sum  for  which  such 
loan  note  or  other  instrument  purports  to  be  such  security : 
Loan  notes    provided  always,  that  any  company  may  renew  any  such 
already  is-     Joan  note  or  other  instrument  issued  by  them  prior  to  the 
renewed.       passing  of  this  act  for  any  period  or  periods  not  exceeding 

five  years  from  the  passing  of  this  act. 
ai°eady°ist^        ^X.  That  where  any  railway  company,  before  the  twelfth 
.sued  to  be     day  of  July,  one  thousand  eight  hundred  and  forty-four, 
paid  when      shall  have  issued  or  contracted  to  issue  any  such  loan  notes 
or  other  unauthorized  instruments,  the   company  may  and 
shall  pay  off  such  loan  notes  or  other  instruments  as  the 
same  may  fall  due,  subject  as  herein-before  provided;  and 
until   the  same  shall  be  so  paid  off  the  said  loan  notes  or 
other  instruments  shall  entitle  the  holders  thereof  to  the 
payment  by  the  company  of  the  principal  sum  and  interest 
thereby  agreed  to  be  paid. 
Register  of        XXI.  That  a  register  of  all  such  loan  notes  or  other 
loan  notes,    instruments  shall  be  kept  by  the  secretary ;  and  such  regis- 
ter shall  be  open,  without  fee  or  reward,  at  all  reasonable 


7^8  Vict.  c.  85.  H 

times,  to  the  inspection  of  any  shareholder  or  auditor  of 
the  undertaking,  and  of  every  person  interested  in  any  such 
loan  note  or  other  instrument  desirous  of  inspecting  the 
same. 

XXII.  And  whereas  the  remedies  now  in  force  for  the  Remedy  for 
recovery  of  tithe  commutation  rent-charges  are  in  many  ^fcovery  of 
instances  ineffectual  for  such  parts  thereof  as  are  charged  charged  on 
upon  lands  taken  for  the  purposes  of  a  railway,  and  it  is  railway  land, 
therefore   expedient  to  extend  the  said  remedies  when  the 

said  rent-charges  may  have  been  duly  apportioned  ;  be  it 
enacted,  that  in  all  cases  in  which  any  such  rent-charge,  or 
part  of  any  rent-charge,  has  been  or  hereafter  shall  be  duly 
apportioned  under  the  provisions  of  the  acts  for  the  com- 
mutation of  tithes  in  England  and  Wales,  upon  lands  taken 
or  pui'chased  by  any  railway  company  for  the  purposes  of 
such  company,  or  upon  any  part  of  such  lands,  it  shall  be 
lawful  for  every  person  entitled  to  the  said  rent-charge  or 
parts  of  such  rent-charge,  in  case  the  same  has  been  or  shall 
be  in  arrear  and  unpaid  for  the  space  of  twenty-one  days 
next  after  any  half-yearly  day  fixed  for  the  payment  thereof, 
to  distrain  for  all  arrears  of  the  said  rent-charge  upon  the 
goods,  chattels,  and  effects  of  the  said  company,  whether  on 
the  land  charged  therewith,  or  any  other  lands,  premises,  or 
hereditaments  of  such  company,  whether  situated  in  the  same 
parish  or  elsewhere,  and  to  dispose  of  the  distress  when 
taken,  and  otherwise  to  demean  himself  in  relation  thereto, 
as  any  landlord  may  for  arrears  of  rent  reserved  on  a  lease 
for  years  ;  provided  always,  that  nothing  herein-contained 
shall  give  or  be  construed  to  give  a  legal  right  to  such  rent- 
charge,  when  but  for  this  act  such  rent-charge  was  not  or 
could  not  be  duly  apportioned. 

XXIII.  That  all  notices,  requisitions,  orders,  regula-  communU 
tions,  appointments,  certificates,  certified  coj)ies,  and  other  cations  to 
documents  in  writing,  signed  by  some  officer  appointed  for  u"'^?°^ 
that  purpose  by  the  lords  of  the  said  committee,  shall  for  trade,  ser- 
the  purposes  of  this  act  be  deemed  to  have  been  made  by  vice  of  no- 
the  lords  of  the  said  committee  ;  and  all  certificates  of  any  ''' 
thing  done  by  the  lords  of  the  said  committee  in  relation  to 

this  act,  and  certified  copies  of  the  miiuites  of  proceedings 
or  correspondence  of  the  lords  of  the  said  committee  in 
relation  thereto,  signed  by  such  officer,  shall  be  deemed 
sufficient  evidence  thereof,  and  that  in  the  absence  of  evi- 
dence to  the  contrary,  witliout  proof  of  the  authority  of  the 
person  signing  the  same  or  of  the  signature  thereto,  and 
service  of  the  same  at  one  of  the  principal  offices  of  any 
railway  company  on  the  secretary  or  clerk  of  the  said  com- 
cc2 


lii 


Interpreta- 
tion of  act. 


Act  maybe 
amended 
this  session, 


Appendix — Statutes. 

pany,  or  by  sending  the  same  by  post,  addressed  to  bini  at 
such  office,  shall  be  deemed  good  service  upon  the  said 
company ;  and  all  notices,  returns,  and  other  documents 
required  by  this  act  to  be  givea  to  or  laid  before  the  lords 
of  the  said  committee,  shall  be  delivered  at  or  sent  by  post 
addressed  to  the  office  of  the  lords  of  the  said  committee. 

XXIV.  That  all  penalties  under  this  act  for  the  appli- 
cation of  which  no  special  provision  is  made  shall  be  reco- 
vered in  the  name  and  for  the  use  of  her  Majesty,  and  may 
be  recovered  in  any  of  her  Majesty's  courts  of  record,  or  m 
the  court  of  session  or  in  any  of  the  sheriff  courts  in  Scot- 
land. 

XX\^.  That  where  the  word  "Railway"  is  used  in  this 
act  it  shall  be  construed  to  extend  to  railways  constructed 
under  the  powers  of  any  act  of  parliament ;  and  when  the 
words  "  Passenger  Railway "  are  used  in  this  act,  they 
shall  be  construed  to  extend  to  railways  constructed  under 
the  powers  of  any  act  of  parliament  upon  which  one  third 
or  more  of  the  gross  annual  revenue  is  derived  from  the 
conveyance  of  passengers  by  steam  or  other  mechanical 
power;  and  whenever  the  word  "Company"  is  used  in 
this  act  it  shall  be  construed  to  extend  to  include  the  pro- 
prietors for  the  time  being  of  any  such  railway  ;  and  that 
where  a  different  sense  is  not  expressly  declared,  or  does 
not  appear  by  the  context,  every  word  importing  the  sin- 
gular number  or  the  masculine  gender  shall  be  taken  to 
include  females  as  well  as  males,  and  several  persons  and 
things  as  well  as  one  person  or  thing. 

XXVI.  That  this  act  may  be  amended  or  repealed  by 
any  act  to  be  passed  in  this  session  of  parliament. 


8  Vict.  c.  16 — Companies  Clauses.  liii 


8  Vict.  c.  16. 

A71  Act  for  consolidating  in  one  Act  certain  Provisiotis 
usually  inserted  in  Acts  with  respect  to  the  Con- 
stitution of  Companies  incorporated  for  carrying  on 
Undertakings  of  a  public  Nature. 

[8th  May,  1845.] 

Whereas  it  is  expedient  to  comprise  in  one  general  act 
sundry  pi-ovisions  relating  to  tlie  constitution  and  manage- 
ment of  joint  stock  companies,  usually  introduced  into  acts 
of  parliament  authorizing  the  execution  of  undertakings  of 
a  public  nature  by  such  companies,  and  that  as  well  for  the 
purpose  of  avoiding  the  necessity  of  repeating  such  pro- 
visions in  each  of  the  several  acts  relating  to  such  under- 
takings as  for  ensuring  greater  uniformity  in  the  provisions 
themselves  :  May  it  therefore  please  your  Majesty  that  it 
may  be  enacted,  and  be  it  enacted  by  the  Queen's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal,  and  commons,  in  this  pre- 
sent parliament  assembled,  and  by  the  authority  of  the  same, 
That  this  act  shall  apply  to  every  joint  stock  company  whicli  Act  to  apply 
shall  by  any  act  which  shall  hereafter  be  passed  be  incorpo  ^°  all  compa- 
rated  for  the  purpose  of  carrying  on  any  undertaking,  and  porated  by 
this  act  shall  be  incorporated  with  such  act ;  and  all  the  acts  hereaf- 
clauses  and  provisions  of  this  act,  save  so  far  as  they  shall  pa'gjgd''^ 
be  expressly  varied  or  excepted  by  any  such  act,  shall  apply 
to  the  company  which  shall  be  incorporated  by  such  act, 
and  to  the  undertaking  for  carrying  on  which  such  com- 
pany shall  be  incorporated,  so  far  as  the  same  shall  be  ap- 
plicable thereto  respectively ;  and  such  clauses  and  pro- 
visions, as  well  as  the  clauses  and  provisions  of  every  other 
act  which  shall  be  incorporated  with  such  act,  shall,  save  as 
aforesaid,  form  part  of  such  act,  and  be  construed  together 
therewith  as  forming  one  act. 

2.  And  with  respect  to  the  construction  of  this  act,  and  interpreta- 
of  other  acts  to  be  incorporated  therewith,  be  it  enacted  as  *',?".* '"  *^'^ 
follows  : 

The  expression  "the  special  act"  used  in  this  act  shall  "the  special 
be  construed  to  mean   any  act  which  shall  be  hereafter  '"•■'  •" 
passed  incorporating  a  joint  stock  company  for  the  purpose 
of  carrying  on   any   undertaking,  and  with  which  this  act  "pre- 
shall  be  so  incorporated  as  aforesaid  ;  and  the  word  "  pre-  ^"^^^   '■ 


Kv 


"  the  under- 
taking." 


Interpreta. 
tions  in  this 
and  the  spe- 
cial act  : 


Number : 


Gender: 


'  Lands:" 


"  Lease  :" 
"Month:" 
"  Superior 
courts :" 


'  Oath  :' 


"  County :" 


'Justice  ; 


"  Two  jus- 
tices :" 


"  The  com- 
pany. " 

"Directors." 


Appendix — Statutes. 

scribed  "  used  in  this  act,  in  reference  to  any  matter  herein 
stated,  shall  be  construed  to  refer  to  such  matter  as  the  same 
shall  be  prescribed  or  provided  for  in  the  special  act;  and 
the  sentence  in  which  such  word  shall  occur  shall  be  con- 
strued as  if  instead  of  the  word  "prescribed"  the  expression 
"prescribed  for  that  purpose  in  the  special  act"  had  been 
used  ;  and  the  expression  "  the  undertaking  "  shall  mean 
the  undertaking  or  works,  of  whatever  nature,  which  shall 
by  the  special  act  be  authorized  to  be  executed. 

3.  The  following  words  and  expressions  both  in  this  and 
the  special  act  shall  have  the  several  meanings  hereby  as- 
signed to  them,  unless  there  be  something  in  the  subject  or 
the  context  repugnant  to  such  construction  ;  (that  is  to  say). 
Words  importing  the  singular  number  onl)'  shall  include 
the  plural  number;  and  words  importing  the  plural 
number  only  shall  include  the  singular  number : 
Words  importing  the  masculine  gender  only  shall  include 

females  : 
The  word  "lands"  shall  extend  to  messuages,  lands, 

tenements,  and  hereditaments  of  any  tenure  : 
The  word  "  lease  "  shall  include  an  agreement  for  a  lease: 
The  word  "  month  "  shall  mean  calendar  month  : 
The   expression  "  superior  courts  "  shall  mean  her  Ma- 
jesty's superior  courts  of  record  at  Westminster  or  Dub- 
lin, as  the  case  may  require  : 
The  word  "  oath  "  shall  include  affirmation  in  the  case  of 
Quakers,  or  other  declaration  lawfully  substituted  for 
an  oath  in  the  case  of  any  other  persons  exempted  by 
law  from  the  necessity  of  taking  an  oath  : 
The  word  "  county  "  shall  include  any  riding  or  other 
like  division  of  a  county,  and  shall  also  include  county 
of  a  city  or  county  of  a  town  : 
The  ward  "justice"  shall  mean  justice  of  the  peace  acting 
for  the  county,  city,  borough,  liberty,  cinque  port,  or 
other  place  where  the  matter  requiring  the  cognizance 
of  any  such  justice  shall  arise,  and  who  shall  not  be  inter- 
ested in   the  matter  ;  and  where  any  matter  shall  be 
authorized  or  required  to  be  done  by  two  justices,  the 
expression  "  two  justices"  shall  be  understood  to  mean 
two  justices  assembled  snd  acting  together  in  petty 
sessions  : 
The  expression  "  the  company  "  shall  mean  the  company 

constituted  by  the  special  act : 
The  expression  "  the  directors  "  shall  mean  the  directors 
of  the  company,  and  shall  include  all  persons  having 
the  direction  of  the  undertaking,  whether  under  the 


8  Vict.  c.  16 — Companies  Clauses.  Iv 

name  of  directors,  managers,  committee  of  manage- 
ment, or  under  any  other  name  : 

The  word  "shareholder"  shall  mean  shareholder,  pro-  "Share- 
prietor,  or  member  of  the  company;  and  in  referring  l^oWers.-" 
to  any  such  shareholder,  expressions  properly  appli- 
cable to  a  person  shall  be  held  to  apply  to  a  corporation : 
and 

The  expi'ession  "the  secretary  "  shall  mean  the  secretary  "Secretary." 
of  the  company,  and  shall  include  the  word  "  clerk." 

4.  And  be  it  enacted.  That  in  citing  this  act  in  other  acts  short  title  of 
of  parliament  and  in  legal  instruments  it  shall  be  sufficient  ^^^  ^'^t- 

to  use  the  expression  "  The  Companies  Clauses  Consolida- 
tion Act,  1845." 

5.  And  whereas  it  may  be  convenient  in  some  cases  to  Form  in 

incorporate  with  acts  of  parliament  hereafter  to  be  passed  ^y'^''-*'  P°^-. 

'■        ,.  1        /.  .  1       '■        .   .  !•  .1  ■  .      1      •      ,  tions  of  this 

some  portion  only  oi  the  provisions  oi  this  act:  be  it  there-  act  may  be 

fore  enacted,  That  for  the  purpose  of  making  any  such  incorporated 

incorporation  it  shall  be  sufficient  in  any  such  act  to  enact  ^"[g^  °*  ^^ 

that  the  clauses  and  provisions  of  this  act,  with  respect  to 

the  matter  so  proposed  to  be  incorporated  (describing  such 

matter  as  it  is  described  in  this  act  in  the  words  introductory 

to  the   enactment   with   respect  to  such  matter),  shall  be 

incorporated  with   such  act :  and  thereupon  all  the  clauses 

and  provisions  of  this  act  with  respect  to  the  matter  so 

incorporated  shall,  save  so  far  as  they  shall  be  expressly 

varied  or  excepted  by  such  act,  form  part  of  such  act,  and 

such  act  shall  be  construed  as  if  the  substance  of  such 

clauses  and  provisions  were  set  forth  therein  with  reference 

to  the  matter  to  which  such  act  shall  relate. 

And  with  respect  to  the  distribution  of  the  capital  of  the  Distribution 
company  into  shares,  be  it  enacted  as  follows  :  of  Capital. 

6.  The  capital   of  the  company   shall  be  divided  into  Capital  to  be 
shares  of  the  prescribed  number  and  amount;   and  such  g^^'^g^J^ '"*° 
shares  shall  be  numbered  in  arithmetical  progression,  be- 
ginning with  number  one  ;  and  every  such  share  shall  be 
distinguished  by  its  appropriate  number. 

7.  All  shares  in  the  undertaking  shall  be  personal  estate.  Shares  to  be 
and  transmissible  as  such,  and  shall  not  be  of  the  nature  of  e"ate?* 
real  estate.  (_/) 

8.  Every  person  who  shall  have  subscribed  the  prescribed  Sharehold- 
sum  or  upwards  to   the  capital  of  the  company,  or  shall  ^"' 
otherwise  have  become  entitled  to  a  share  in  the  company, 

and  whose  name  shall  have  been  entered  on  the  register  of 

(/)  As  to  nature  of  shares  generally,  see  Treatise,  p.  254  et  seq. 


Ivi 


Registry  of 
sharehold- 
ers. 


Addresses  of 
sharehold- 
ers. 


Certificates 
of  shares  to 
be  issued  to 
the  share- 
holders. 


Appendix — Statutes. 

shareholders   hereinafter-mentioned,   shall    be    deemed  a 
shareholder  of  the  company. 

9.  The  company  shall  keep  a  book,  to  be  called  the 
"  Register  of  Shareholders  ;  and  in  such  book  shall  be  fairly 
and  distinctly  entered,  from  time  to  time,  the  names  of  the 
several  corporations  and  the  names  and  additions  of  the 
several  persons  entitled  to  shares  in  the  company,  together 
with  the  number  of  shares  to  which  such  shareholders  shall 
be  respectively  entitled,  distinguishing  each  share  by  its 
number,  and  the  amount  of  the  subscriptions  paid  on  such 
shares,  and  the  surnames  or  coi-porate  names  of  the  said 
shareholders  shall  be  placed  in  alphabetical  order :  and  such 
book  shall  be  authenticated  by  the  common  seal  of  the 
company  being  affixed  thereto ;  and  such  authentication 
shall  take  place  at  the  first  ordinary  meeting,  or  at  the  next 
subsequent  meeting  of  the  company,  and  so  from  time  to 
time  at  each  ordinary  meeting  of  the  company,  (g) 

10.  In  addition  to  the  said  register  of  shareholders,  the 
company  shall  provide  a  book,  to  be  called  the  "  Shareholders 
Address  Book,"  in  which  the  secretary  shall  from  time  to 
time  enter  in  alphabetical  order  the  corporate  names  and 
places  of  business  of  the  several  shareholders  of  the  com- 
pany, being  corporations,  and  the  surnames  of  the  several 
other  shareholders  with  their  respective  christian  names, 
places  of  abode,  and  descriptions,  so  far  as  the  same  shall 
be  known  to  the  company;  and  ever)'  shareholder,  or  if  such 
shareholder  be  a  corporation  the  clerk  or  agent  of  such  cor- 
poration, may  at  all  convenient  times  peruse  such  book 
gratis,  and  may  require  a  copy  tliereof  or  of  any  part  thereof; 
and  for  every  hundred  words  so  required  to  be  copied  the 
company  may  demand  a  sum  not  exceeding  sixpence. 

11.  On  demand  of  the  holder  of  any  share  the  company 
shall  cause  a  certificate  of  the  pi-oprietorship  of  such  share 
to  be  delivered  to  such  shareholder ;  and  such  certificate 
shall  have  the  common  seal  of  the  company  affixed  thereto; 
and  such  certificate  shall  specify  the  share  in  the  under- 
taking to  which  such  shareholder  is  entitled  ;  and  the  same 
may  be  according  to  the  form  in  the  schedule  (A.)  to  this 
act  annexed,  or  to  the  like  effect ;  and  for  such  certificate 
the  company  may  demand  any  sum  not  exceeding  the  pre- 
scribed amount,  or  if  no  amount  be  prescribed,  then  a  sum 
not  exceeding  two  shillings  and  sixpence. 

(  g  )  See  as  to  registration  of  shareholders,  Treatise,  p.  249, 
250  ;  also,  as  to  how  far  above  provisions  of  act  touching  the 
entries  in  the  register  are  to  be  deemed  directory  only  and  not 
essential,  see  Treat,  ante,  cap.  VI T. 


8  Vict.c.  16 — Companies  Clauses.  Ivii 

12.  The  said  certificate  (h)  shall  be  admitted  in  all  courts  5'"''f(f'''„'^g° 
as  prima  fucie  evidence  of  the  title  of  such  shareholder,  his 
executors,  administrators,  successors,  or  assigns,  to  the  share 

therein  specified ;  nevertheless  the  want  of  such  certificate 
shall  not  prevent  the  holder  of  any  share  from  disposing 
thereof. 

13.  If  any  such  certificate   be  -worn  out  or  damaged,  p"tificate  to 
.,  y.  ,     .  Ill  ..•  i-  be  renewed 
then,  upon  the  same  being  produced  at  some  nieetmg  oi  ^y[,en  de- 

the  directors,  such  directors  may  order  the  same  to  be  stroyed. 
cancelled,  and  thereupon  another  similar  certificate  shall  be 
given  to  the  Jiarty  in  whom  the  property  of  such  certificate, 
and  of  the  share  therein^mentioned,  shall  be  at  the  time 
vested ;  or  if  such  certificate  be  lost  or  destroyed,  then, 
upon  proof  thereof  to  the  satisfaction  of  the  directors,  a 
similar  certificate  shall  be  given  to  the  party  entitled  to  the 
certificate  so  lost  or  destroyed ;  and  in  either  case  a  due 
entry  of  the  substituted  certificate  shall  be  made  by  the 
secretary  in  the  register  of  shareholders ;  and  for  every  such 
certificate  so  given  or  exchanged  the  company  may  demand 
any  sum  not  exceeding  the  prescribed  amount,  or  if  no 
amount  be  pi'escribed,  then  a  sum  not  exceeding  two  shil- 
lings and  sixpence. 

And  with  respect  to  the  transfer  or  transmission  of  shares.  Transfer  of 
be  it  enacted  as  follows :  shares. 

14.  Subject  to  the  regulations  herein  or  in  the  special  act  '^'^'^"^/t'^  ?^^ 
contained,  every  shareholder  may   sell  and  transfer  all  or  by  deed  duly 
any  of  his  shares  in  the  undertaking,  or  all  or  any  part  of  stamped. 
his  interest  in  the   capital  stock  of  the  company,  in  case 

such  shares  shall,  under  the  provision  hereinafter  contained, 
be  consolidated  into  capital  stock,  and  every  such  transfer 
shall  be  by  deed  duly  stamped,  in  which  the  consideration 
shall  be  truly  stated;  and  such  deed  may  be  according  to 
the  form  in  the  schedule  (B.)  to  this  act  annexed,  or  to  the 
like  effect,  {i) 

15.  The  said  deed  of  transfer  (when  duly  executed)  shall  '^[[^"'/to^ijg'^ 
be  delivered  to  the  secretary,  and  be  kept  by  him ;  and  the  registered, 
secretary  shall  enter  a  memorial  thereof  in  a  book  to  be  &c. 
called  the  "  Register  of  Transfers,"  and  shall  indorse  such 

entry  on  the  deed  of  transfer,  and  shall,  on  demand,  deliver 
a  new  certificate  to  tlie  purchaser  ;  and  for  every  such 
entry,  together  with  such  indorsement  and  certificate,  the 
company  may  demand  any  sum  not  exceeding  the  pre- 

{h)  As  to  effect  of  certificate  as  evidence  of  title,  see  Treat, 
ante,  p.   260,  261. 
(t)  As  to  instrument  of  transfer,  see  Treatise,  p.  265,  266. 
c  c  5 


Iviii  AppeMix-^'-^Statiites'. 

scribed  amount,  or  if  no  amount  be  prescribed,  tben  a  sum 
not  exceeding  two  shillings  and  sixpence;  and  on  the  request 
of  the  purchaser  of  any  share  an  indorsement  of  such 
transfer  shall  be  made  on  the  certificate  of  such  share,  in- 
stead of  a  new  certificate  being  granted  ;  and  such  indorse- 
ment, being  signed  by  the  secretary,  shall  be  considered  in 
every  respect  the  same  as  a  new  certificate;  and  until  such 
transfer  has  been  so  delivered  to  the  secretary  as  aforesaid 
the  vendor  of  the  share  shall  continue  liable  to  the  company 
for  any  calls  that  may  be  made  upon  such  share,  and  the 
purchaser  of  the  share  shall  not  be  entitled  to  receive  any 
share  of  the  profits  of  the  undertaking,  or  to  vote  in  respect 
of  such  share,  {k) 
Transfer  not  16.  No  shareholder  shall  be  entitled  to  transfer  any 
to  be  made  share,  after  any  call  shall  have  been  made  in  respect  thereof, 
paid  '^^  '  until  he  shall  have  paid  such  call,  nor  until  he  shall  have' 
paid  all  calls  for  the  time  being  due  on  every  share  held  by 
him.  (/) 
Closing  of  17".  It  shall  be  lawful  for  the  directors  to  close  the  regis- 
transfer  ter  of  transfers  for  the  prescribed  period,  or  if  no  period  be 
prescribed,  then  for  a  period  not  exceeding  fourteen  daj's 
previous  to  each  ordinaiy  meeting,  and  they  may  fix  a  day 
for  the  closing  of  the  same,  of  which  seven  days  notice  shall 
be  given  by  advertisement  in  some  newspaper  as  after  men- 
tioned ;  and  any  transfer  made  during  the  time  when  the 
transfer  books  are  so  closed  shall,  as  between  the  company 
and  the  party  claiming  imder  the  same,  but  not  otherwise, 
be  considered  as  made  subsequently  to  such  ordinary  meet- 
ing. 
Transmis-  18.  If  the  interest  in  any  share  shall  have  become  trans- 

sion  of  mitted  in  consequence  of  the  death  or  bankruptcy  or  insol- 

other  means  ^'cncy  of  any  shareholder,  or  in  consequence  of  the  marriage 
than  transfer  of  a  female  shareholder,  or  by  any  other  lawful  means  than 
ti°cat^ed"b''^""  '^^  ^  transfer  according  to  the  ])rovisions  of  this  or  the  spe- 
declaration.    cial  act,  such   transmission  shall  be  authenticated  by  a  de- 
claration in   writing  as  hereinafter-mentioned,  or  in  such 
other  manner  as  the  directors  shall  require;  and  every  such 
declaration  shall  state  the  manner  in  which  and  the  party 
to  whom  such  share  shall  have  been  so  transmitted,  and 
shall  be  made  and  signed  by  some  credible  person  before  a 
justice,  or  before  a  master  or  master  extraordinary  of  the 

{k)  As  to  t^le  effect  of  such  clause  on  the  property  in  shares, 
&c.,  see  Treatise,  pp.  266,  250;  351. 

(/)  As  to  question  what  meant  by  "  time  of  making  call,  " 
see  Treatise,  p.  285,  n.  {my. 


8  Vict.  c.  16— 'Clauses  Clauses.  lix 

high  court  of  chancery;  and  such  declaration  shall  be  left 
with  the  secretary,  and  thereupon  he  shall  enter  the  name 
of  the  person  entitled  under  such  transmission  in  the  regis- 
ter of  shareholders  ;  and  for  every  such  entry  the  company 
may  demand  any  sum  not  exceeding  the  prescribed  amount, 
and  where  no  amount  shall  be  prescribed  then  not  exceed- 
ing five  shillings ;  and  until  such  transmission  has  been  so 
authenticated  no  person  claiming  by  virtue  of  any  such 
transmission  shall  be  entitled  to  receive  any  share  of  the 
profits  of  the  undertaking,  nor  to  vote  in  respect  of  any 
sucli  share  as  the  holder  thereof,  [m) 

19.  If  such  transmission  be  by  virtue  of  the  marriage  of  ^'°°^  <?f  . 

a  female  shareholder,  the  said  declaration  shall  contain  a  ^y  marriage, 
copy  of  the  register  of  such  marriage,  or  other  particulars  will,  &c 
of  the  celebration  thereof,  and  shall  declare  the  identity  of 
the  wife  with  the  holder  of  such  share  ;  and  if  such  ti-ans- 
mission  have  taken  place  by  virtue  of  any  testamentary 
instrument,  or  by  intestacy,  the  probate  of  the  will  or  the 
letters  of  administration,  or  an  official  extract  therefrom, 
shall,  together  with  such  declaration,  be  produced  to  the 
secretary  ;  and  upon  such  production  in  either  of  the  cases 
aforesaid  the  secretary  shall  make  an  entry  of  the  declara- 
tion in  the  said  register  of  transfers.  (/??) 

20.  The  company  shall  not  be  bound  to  see  to  the  exe-  Company  not 
cution  of  any  trust,  whether  express,  implied,  or  construe-  ga"^  trusts." 
tive,  to  which  any  of  the  said  shares  may  be  subject ;  and 

the  receipt  of  the  party  in  whose  name  any  such  share  shall 
stand  in  the  books  of  the  company,  or  if  it  stands  in  the 
names  of  more  parties  than  one,  the  receipt  of  one  of  the 
parties  named  in  the  register  of  shareholders,  shall  from 
time  to  time  be  a  sufficient  discharge  to  the  company  for 
any  dividend  or  other  sum  of  money  payable  in  respect  of 
such  share,  notwithstanding  any  trusts  to  which  such  share 
may  then  be  subject,  and  whether  or  not  the  company  have 
had  notice  of  such  trusts ;  and  the  company  shall  not  be 
bound  to  see  to  the  application  of  the  money  paid  upon 
such  receipt. 

And  with  respect  to  the  payment  of  subscriptions  and  Payment  of 
the  means  of  enforcing  the  payment  of  calls,  be  it  enacted       Calls. 
as  follows  : 

21.  The  several  persons  who  have  subscribed  any  money  S'lbscrip- 
towards  the  undertaking,   or   their   legal   representatives,  paiTwhen 

called  for. 

(to)  As  to  the  intent  and  operation  of  such  provision,  see 
Treatise,  p.  2oO,  251. 


Appendix—  Statutes. 

respectively,  shall  pay  the  sums  respectively  so  subscrihed 
or  such  portions  thereof  as  shall  from  time  to  time  be  called 
for  by  the  company,  at  such  times  and  places  as  shall  be 
appointed  by  the  company  ;  and  with  respect  to  the  pro- 
visions herein  or  in  the  special  act  contained  for  enforcing 
the  payment  of  calls,  the  word  "  shareholder  "  shall  extend 
to  and  conclude  the  legal  personal  representatives  of  such 
shareholder. 

22.  It  shall  be  lawful  for  the  company  from  time  to  time 
to  make  such  calls  of  money  upon  the  respective  share- 
holders, in  respect  of  the  amount  of  capital  respectively  sub- 
scribed or  owing  by  them,  as  they  shall  think  fit,  provided 
that  twenty-one  days  notice  at  the  least  be  given  of  each 
call,  and  that  no  call  exceed  the  prescribed  amount,  if  any, 
and  that  successive  calls  be  not  made  at  less  tliau  the  pre- 
scribed interval,  if  any,  and  that  the  aggregate  amount  of 
calls  made  in  any  one  year  do  not  exceed  the  prescribed 
amount,  if  any ;  and  ever)'  shareholder  shall  be  liable  to 
pay  the  amount  of  the  calls  so  made,  in  respect  of  the  shares 
held  by  him,  to  the  j^ersons  and  at  the  times  and  places 
from  time  to  time  appointed  by  the  company,  {n) 

23.  If,  before  or  on  the  day  appointed  for  payment,  anj- 
shareholder  do  not  pay  the  amount  of  any  call  to  which  he 

'  is  liable,  then  such  shareholder  shall  be  liable  to  pa)'  in- 
terest for  the  same  at  the  rate  allowed  by  law  from  the  day 
appointed  for  the  payment  thei-eof  to  the  time  of  the  actual 
payment. 

24.  It  shall  be  lawful  for  the  company,  if  they  think  fit, 
to  receive  from  any  of  the  shareholdei's  willing  to  advance 
the  same  all  or  any  part  of  the  monies  due  upon  their  re- 
spective shares  beyond  the  sums  actually  called  for ;  and 
upon  the  principal  monies  so  paid  in  advance,  or  so  much 
thereof  as  from  time  to  time  shall  exceed  the  amount  of  the 
calls  tlien  made  upon  the  shares  in  respect  of  which  such 
advance  shall  be  made,  the  company  may  pay  interest  at 
such  rate,  not  exceeding  the  legal  rate  of  interest  for  the 
time  being,  as  the  shareholder  paying  such  sum  in  advance 
and  the  company  shall  agree  upon. 

25.  If  at  the  time  appointed  by  the  company  for  the  pay- 
ment of  any  call  any  shareholder  fail  to  pay  the  amount  of 
such  call,  it  shall  be  lawi'ul  for  the  company  to  sue  such 
shareholder  for  the  amount  thereof,  in  any  court  of  law  or 
equity  having   competent  jurisdiction,  and  to  recover  the 

(n)  As  to  power  to  make  calls,  &c.,  see  Treatise,  ante,  p, 
275,  et  seq. 


i 


8  Vict.  c.  \6— Companies  Clauses.  Ixi 

same,  with  lawful  interest,  from  the  day  on  which  such  call 
was  payable,  (o) 

26.  In  any  action  or  suit  to  be  brought  by  the  company  Declaration 
against  any  shareholder  to  recover  any  money  due  for  any  caib.''""  '""^ 
call,  it  shall  not  be  necessary  to  set  forth  the  special  niattev, 

but  it  shall  be  sufficient  for  the  compaiiy  to  declare  that  the 
defendant  is  the  holder  of  one  share  or  more  in  the  com- 
pany (stating  the  number  of  shares),  and  is  indebted  to  the 
company  in  the  sum  of  money  to  wliich  the  calls  in  arrear 
shall  amount  in  respect  of  one  call  or  more  upon  one  sliare 
or  more  (stating  the  number  and  amount  of  each  of  such 
calls),  whereby  an  action  hath  accrued  to  the  company  by 
virtue  of  this  and  the  special  act.  (p  ) 

27.  On  the  trial  or  hearing  of  such  action  or  suit  it  shall  ^^^tter  u,  be 
be   sufficient  to  prove   that  the   defendant  at  the  time  of  action  for 
making  such  call  was  a  holder  of  one  share  or  more  in  the  calls, 
undei'taking,  and  that  such  call  was  in  fact  made  and  such 

notice  thereof  given  as  is  directed  by  tliis  or  the  special 
act;  and  it  shall  not  be  necessary  to  prove  the  appointment 
of  the  directors  who  made  such  call,  nor  any  other  matter 
whatsoever;  and  thereupon  the  company  shall  be  entitled 
to  recover  what  shall  be  due  upon  such  call,  with  interest 
thereon,  unless  it  shall  appear  either  that  any  such  call  ex- 
ceeds the  prescribed  amount,  or  that  due  notice  of  such  call 
was  not  given,  or  that  the  prescribed  interval  between  two 
successive  calls  had  not  elapsed,  or  that  calls  amounting  to 
more  than  the  sum  prescribed  for  the  total  amount  of  calls 
in  one  year  had  been  made  within  that  period,  (q) 

28.  The  production  of  the  register  of  shareholders  shall  Proof  of  pro- 
be primli  facie  evidence  of  such  defendant  being  a  share-  pr'etorship. 
holder,  and  of  the  number  and  amount  of  his  shares,  (r) 

And  with  respect  to  the  forfeiture  (s)  of  shares  for  non-    Non.par/- 
payment  of  calls,  be  it  enacted  as  follows  :  "c"u  ""^ 

(o)  Declaration  need  not  contain  a  count  for  interest ;  see 
Treat,  ante,  cap. VII.  As  to  necessity  of  writ  of  inquiry  where 
judgment  is  suffered  by  default,  see  Treat,  ante,  ib. 

{p}  See   as  to  declaration  generally,  Treatise,  ante,  ib. 

(y)  As  to  effect  of  such  a  provision  on  the  pleadings  in  ac- 
tions for  calls,  see  Treatise,  ante,  pp.  278,  279,  and  cap.  VII. 

(r)  As  to  effect  of  register  as  evidence,  and  when  admissible 
though  not  stiictly  kept  in  compliance  with  requisites  of  act, 
see  Treatise^  ante,  cap.  VII. 

(s)  As  to  exercise  of  power  of  forfeiture  under  a  prior  act 
by  directors,  see  Treatise,  cap.  Ill,  sect.  4,  subsect  3,  and 
cap.  VII. 


Ixii 

Forfeiture  of 
shares  for 
non-pay 
meat. 


Notice  of  for- 
feiture to  be 
given  before 
(leclaratioa 
thereof. 


Forfeiture  to 
becundrmed 
by  a  general 
meeting. 


Sale  of  for- 
leitedshares. 


Appendix — Statutes. 

29.  If  any  shareholder  fail  to  pay  any  call  payable  by 
him,  together  with  the  interest,  if  any,  that  shall  have  ac- 
crued thereon,  the  directors,  at  any  time  after  the  expiration 
of  two  months  from  the  day!  appointed  for  payment  of 
Buch  call,  may  declare  the  share  in  respect  of  which  such 
call  was  payable  forfeited,  and  that  whether  the  company 
have  sued  for  the  amount  of  such  call  or  not. 

30.  Before  declaring  any  share  forfeited  the  directors 
shall  cause  notice  of  such  intention  to  be  left  at  or  trans- 
mitted by  the  post  to  the  usual  or  last  place  of  abode  of  the 
person  appearing  by  the  register  of  shareholders  to  be  the 
proprietor  of  such  share ;  and  if  the  holder  of  any  such 
share  be  abroad,  or  if  his  usual  or  last  place  of  abode  be  not 
known  to  the  directors,  by  reason  of  its  being  imperfectly 
described  in  the  shareholders  address  book,  or  otherwise, 
or  if  the  interest  in  any  such  share  shall  be  known  by  the 
directors,  to  have  become  transmitted  otherwise  than  by 
transfer  as  hereinbefore  mentioned,  but  a  declaration  of 
such  transmission  shall  not  have  been  registered  as  afore- 
said, and  so  the  address  of  the  parties  to  whom  the  same 
may  have  been  transmitted,  or  may  for  the  time  being 
belong,  shall  not  be  known  to  the  directors,  the  director* 
shall  give  public  notice  of  such  intention  in  the  London  or 
Dublin  Gazette,  according  as  the  company's  principal  place 
of  business  shall  be  situate  in  England  or  Ireland,  and  also 
in  some  newspaper  as  after  mentioned;  and  the  several 
notices  aforesaid  shall  be  given  twenty-one  days  at  least 
before  the  directors  shall  make  such  declaration  of  forfeiture. 

31.  The  said  declaration  of  forfeiture  shall  not  take  effect 
so  as  to  authorize  the  sale  or  other  disposition  of  any  share 
until  such  declaration  have  been  confirmed  at  some  general 
meeting  of  the  company  to  be  held  after  the  expiration  of 
two  months  at  the  least  from  the  day  on  which  such  notice 
of  intention  to  make  such  declaration  of  forfeiture  shall  have 
been  given;  and  it  shall  be  lawful  for  the  company  to  con- 
firm such  forfeiture  at  any  such  meeting,  and  by  an  order  at 
such  meeting  or  at  any  subsequent  general  meeting,  to  direct 
the  share  so  forfeited  to  be  sold  or  otherwise  disposed  of.  {t) 

32.  After  such  confirmation  as  aforesaid  it  shall  be  lawful 
for  the  directors  to  sell  the  forfeited  share,  either  by  public 
auction  or  private  contract,  and  if  there  be  more  than  one 
such  forfeited  share,  then  either  separately  or  together,  as 


(<)  As  to  necessity  of  confirmallon  of  declaration  of  forfeiture 
by  general  meeting  to  constitute  a  valid  forfeiture,  see  Treatise, 
cap.  Ill,  sect.  4,  subject  3. 


8  Vict.  c.  16 — -Companies  Clauses.  Ixin 

to  tliem  shall  seem  fit;  and  any  shareholder  may  purchase 
any  forfeited  share  so  sold.(M) 

33.  A  declaration  in  writing,  by  some  credible  person  Evidence  as 
not  interested  in  the  matter,  made  before  any  justice  or  '''  '■'''•t'<^'t"''e 
before  any  master  or  master  extraordinary   of  the  Iliph 

Court  of  Chancery,  that  the  call  in  respect  of  a  share  was 
made,  and  notice  thereof  given,  and  that  default  in  pay- 
ment of  the  call  was  made,  and  that  the  forfeiture  of  the 
share  was  declared  and  confirmed  in  manner  hereinbefore 
required,  shall  be  sufficient  evidence  of  the  facts  therein 
stated;  and  such  declaration,  and  the  receipt  of  the  trea- 
surer of  the  company  for  the  price  of  such  share,  shall  con- 
stitute a  good  title  to  such  share ;  and  a  certificate  of  pro- 
prietorship shall  be  delivered  to  such  purchaser,  and  there- 
upon he  shall  be  deemed  the  holder  of  such  share,  discharged 
from  all  calls  due  prior  to  such  purchase;  and  he  shall  not 
be  bound  to  see  to  the  application  ot  the  purchase  money, 
nor  shall  his  title  to  such  share  be  affected  by  any  irregu- 
larity in  the  proceedings  in  reference  to  such  sale. 

34.  The  company  shall  not  sell  or  transfer  more  of  the  ^°  more^ 
shares  of  any  such  defaulter  than  will  be  sufficient,  as  nearly  gou  than 
as    can  be  ascertained  at  the  time  of  such  sale,    to  pay  the  sufficient  for 
arrears  then  due  from  such  defaulter  on  account  of  any  PY™*^"'  °^ 
calls,   together  with  interest,    and  the  expences  attending 

such  sale  and  declaration  of  forfeiture ;  and  if  the  money 
produced  by  the  sale  of  any  such  forfeited  shares  be  more 
than  sufficient  to  pay  all  arrears  of  calls  and  interest  thereon 
due  at  the  time  of  such  sale,  and  the  expences  attending 
the  declaration  of  forfeiture  and  sale  thereof,  the  surplus 
shall  J  on  demand,  be  paid  to  the  defaulter. 

35.  If  payment  of  such  arrears  of  calls  and  interest  and  On  payment 
expences  be  made  before  any  share  so  forfeited  and  vested  fo^g'^slfi  ^^' 
in  the  company  shall  have  been  sold,  such  share  shall  i-evert  forfeited 
to  the  party  to  whom  the  same  belonged  before  such   for-  shares  to 
feiture,  in  such  manner  as  if  such  calls  had  been  duly  paid. 


revert. 


(a)  Where,  under  a  power  of  forfeiture  or  sale  given  by  the 
deed  of  settlement  of  a  joint  stock  banking  company,  thedirec- 
tors  declared  a  party's  shares  forfeited,  and  gave  him  credit  in 
his  account  for  a  sum  something  less  than  the  market  price  of 
the  shares,  but  above  what  that  price  would  have  fallen  to,  had 
the  shares  in  question  been  carried  into  the  market,  the  forfeiture 
was  held  void,  and  was  set  aside  by  a  court  of  equity;  Slubbs 
\.  Lister,  1  V.  &  Coll.  N.  C.  81. 


Ixiv  Appendix- — Statutes. 

Remedies        ^^^^  ^^'itli  respect  to  the  remedies  of  creditors  of  tile  com- 
agnin.st      panji  against  the  shareholders,  be  it  enacted  as  follows: 
hoUiers  ^^-  ^^  ^"^  execution,    either  at  law  or  in  equity,    shall 

Execution     have  been  issued  against  the  property  or  effects  of  the  com- 
^^a'"st  pany,    and  if  there  cannot  be  found  sufficient  whereon    to 

to  the  extent  '^^T  such   execution,   then   such  execution  may  be  issued 
of  their         against  any  of  the  shareholders  to  the  extent  of  their  shares 
capUal'not     respectively  in  the  capital  of  the  company  not  then  paid 
paid  lip-         up:     provided  always,    that  no  such  execution  shall  issue 
against  any  shareholder  except  upon  an  order  of  the  court 
in  which  the  action,    suit,    or  other  proceeding  shall  have 
been,    brought  or  instituted,    made  upon  motion  in  open 
court,  after  sufficient  notice  in  writing  to  the  persons  sought 
to  be  charged:  and  upon  such  motion  such  court  may  order 
execution  to  issue  accordingly;  and  for  the  purpose  of  ascer- 
taining the  names  of  the  shareholders,    and  the  amount  of 
capital  remaining  to  be  paid  upon  their  respective  shares,  it 
shall  be  lawful  for  any  person  entitled  to  any  such  execution, 
at  all  reasonable  times,  to  inspect  the  register  of  shareholders 
Vvithout  fee.fjj 
Reimburse-        •^7'.  If  by  means  of  any  such  execution  any  shareholder 
mentofsuch  shall  have  paid  any  sum  of  money  beyond  the  amount  tlicn 
shnrehold-    ^^^^  from  him  in  respect  of  calls,  he  shall  forthwith  be  reim- 
bursed such  additional  sum  by  the  directors  out  of  the  tunds 
of  the  company. 

Pnwer  to        And  with  respect  to  the  borrowing  of  money  by  the  com- 

borrow      pany  on  mortgage  or  bond,  be  it  enacted  as  follows: 

Monty.         2g    jf  j_]^g  company  be  authorized  by  the  special  act  to 

Power  to      borrow  money  on  mortgage  or  bond,    it  shall  be  lawful  for 

ney.  them,    subject  to  the  restrictions  contained  in  the  special 

act,  to  horrow  on  mortgage  or  bond  such  sums  of  money  as 

shall  from  time  to  time,   by  an  order  of  a  general  meeting 


(x)  Semble,  a  scire  facias  may  possibly  be  deemed  necessary 
under  this  clause  in  order  to  have  execution  ag-ainst  a  share- 
holder. See  Stat.  7  &  8  Vict.  c.  110.  s. ;  and  see  also  Clones 
V.  Bret  eel,  10  M.  &  W.  506;  Rawfurd  v  Bonsanquet,  12.  A.  § 
E.  813;  Eardleyv.  Law.  ih.  S02  ;  Cross  v.  Law,  6 'hi.  S^W .  217  ; 
Whittenbunj  v  Law,  6  Bing.  N.  C.  345;  Harwoodv.  Law,  7  M. 
4,-  W.  203,-  IVivgJield  v.  Barton,  2  Dowl.  P.  C.  N.  S.  355;  S. 
C.  nom.  IVivfietd  v.  Peel,  21  Law.  Journ.  Q.  B.  102.  In  order 
to  haveexecution  against  an  individual  shareholder,  a  party,  it 
should  seem,  must  show  that  he  has  made  substan:;ial  and 
boiia  fide  endeavours  to  obtain  execution  against  the  company. 
See  Eurdley  v.  Laiv,  ubi  supra. 


8  Vict.  c.  1 6 — Companies  Clauses.  Ixv 

of  the  company,  be  authorized  to  be  borrowed,  not  exceed- 
ing in  the  whole  the  sum  prescribed  by  the  special  act,  and 
for  securing  the  repayment  of  the  money  so  borrowed,  with 
interest,  to  mortgage  the  undertaking,  and  the  future  calls 
on  the  shareholders,  or  to  give  bonds  in  manner  hereinafter 
mentioned. (^) 

39.  If,   after  having  borrowed  any  part  of  the  money  so  Power  to  re. 
authorized  to  be  borrowed  on  mortgage  or  bond,  the  com-  borrow, 
pany  pay  off  the  same,  it  shall  be  lawful  for  them  again  to 

borrow  the  amount  so  paid  off,  and  so  from  time  to  time: 
but  such  power  of  reborrowing  shall  not  be  exercised  with- 
out the  authority  of  a  general  meeting  of  the  company,  un- 
less the  money  be  so  reborrowed  in  order  to  pay  off  any 
existing  mortgage  or  bond. 

40.  Where  by  the  special  act  the  company  shall  be  re-  Evidence  of 
stricted  from  borrowing  any  money  on  mortgage  or  bond  ^"rro^v'ng.'''^ 
until  a  definite  portion  of  their  capital  shall  be  subscribed  or 

paid  up,  or  where  by  this  or  the  special  act  the  authority  of 
a  general  meeting  is  required  for  such  borrowing,  the  certi- 
ficate of  a  justice  that  such  definite  portion  of  the  capital  has 
been  subscribed  or  paid  up,  and  a  copy  of  the  order  of  a 
general  meeting  of  the  company  authorizing  the  borrowing 
of  any  money,  certified  by  one  of  the  directox's  or  by  the 
secretary  to  be  a  true  copy,  shall  be  sufficient  evidence  of 
the  fact  of  the  capital  required  to  be  subscribed  or  paid  up 
having  been  so  subscribed  or  paid  up,  and  of  the  order  for 
borrowing  money  having  been  made;  and  upon  production 
to  any  justice  of  the  books  of  the  company,  and  of  such 
other  evidence  as  he  shall  think  sufficient,  such  justice  shall 
grant  the  certificate  aforesaid. 

41.  Every  mortgage  and  bond  for  securing  money  bor-  Mortgages 
rowed  by  the  company  shall  be  by  deed  under  the  common  ^^  stamped, 
seal  of  the  company,  duly  stamped,  and  wherein  the  consi- 
deration shall  be  truly  stated;    and  every  such  mortgage 

deed  or  bond  may  be  according  to  the  form  in  the  schedule 
(C.)  or  (D.)  to  this  act  annexed,  or  to  the  like  effi^ct. 

42.  The  respective  mortgagees  shall  be  entitled  one  with  Rights  of 
another  to  their  respective  proportions  of  the  tolls,  sums,  and 
premises  comprised  in  such  mortgages,    and  of  the  future 

calls  payable  by  the  shareholders,  if  comprised  therein,  ac- 
cording to  the  respective  sums  in  such  mortgages  mentioned 
to  be  advanced  by  such  mortgagees  respectively,  and  to  be 

(y)  Mortgage  of  undertaking  does  not  carry  the  land;  Doe  d. 
Myatt  V.  St.  Helens  and  Runcorn  Railway  Company,  2  A.  &  E. 
N.  S.  364,  and  ante,  p.  244. 


Ixvi  Appendix — Statutes. 

repaid  the  sums  so  advanced,    with  interest   without  any 
preference  one  above  another  by  reason  of  priority  of  the 
date  of  any  such  mortgage,  or  of  the  meeting  at  which  the 
same  was  authorized,  (c) 
Application       43.  No  such  mortgage  (although  it  should  comprise  future 
of  calls,  not-  calls  on  the  shareholders)  shall,  unless  expressly  so  provided, 
ingmo^t- '    preclude  the  company  from  receiving  and  applying  to  the 
gage.  purposes  of  the  company  any  calls  to  be  made  by  the  com- 

pany. 
Riehts  of  '^'^'  "^^^  respective  obligees  in  such  bonds  shall,  propor- 

obiigees.        tionally  according  to  the  amount  of  the  monies  secured 
thereby,  be  entitled  to  be  paid,  out  of  the  tolls  or  other  pro- 
perty or  effects  of  the  company,  the  respective  sums  in  such 
bonds  mentioned  and  thereby  intended  to  be  secured,  with- 
out any  preference  one  above  another  by  reason  of  priority 
of  date  of  any  such  bond,  or  of  the  meeting  at  which  the 
same  was  authorized,  or  otherwise  howsoever. (a) 
Register  of       45.  A  register  of  mortgages  and  bonds  shall  be  kept  by 
mortgages      the  secretary,  atid  within  fourteen  days  alter  the  date  of  any 
and  bonds,     gu^h  mortgage  or  bond  an  entry  or  memorial  specifying  the 
number  and  date  of  such  mortgage  or  bond,  and  the  sums 
secured  thereby,  and  the  names  of  the  parties  thereto,  with 
their  proper  additions,  shall  be  made  in  such  register;  and 
such  register  may  be  perused  at  all  reasonable  times  by  any 
of  the  shareholders,  or  by  any  mortgagee  or  bond  creditor 
of  the  company,   or  by  any  person  interested  in  any  such 
mortgage  or  bond,  without  fee  or  reward. 
Transfers  of      46.  Any  party  entitled  to  any  such  mortgage  or  bond 
mortgages      may  from  time  to  time  transfer  his  right  and  interest  therein 
be  stamped?  *•"  ^"y  other  person;  and  every  such  transfer  shall  be  by 
deed  duly  stamped,  wherein  the  consideration  shall  be  truly 
stated:  and  every  such  transfer  may  be  according  to  the 
form  in  the  schedule(E.)  tothis  act  annexed,  or  to  the  like 
effect. 
Transfers  of      47.  Within  thirty  days  after  the  date  of  every  such  trans- 
mortgages     fer,  if  executed  within  the  United  Kingdom,  or  otherwise 

(z)  As  to  the  nature  of  the  mortgagee's  remedy  under  such 
an  instrument  see  Pontet  v.  Basingstoke  Canal  Company,  3 
Bing.  N.  C.  433. 

(a)  Quaere,  whether  an  obligee  can,  under  this  provision, 
maintain  an  action  on  any  such  bond  against  the  company 
while  there  are  other  bonds  unsatisfied,  la  Hit! v.  Manchester 
and  Salford  IVnterworks  Company,  2  B.  &  Ad.  544,  where  an 
action  was  held  to  lie  on  such  a  bond,  the  provision  was  not 
that  the  obligees  should  be  paid  outof  the  tolls,  iScc.  as  here,  but 
simply  that  they  should  have  equally  a  lien  on  the  rates,  &c. 


8  Vict.  c.  16 — Companies  Clauses.  Ixvii 

■within  thirty  days  after  the  arrival  thereof  in  the  United  and  bonds  to 
Kingdom,  it  shall  be  produced  to  the  secretary,  and  there-  ^^^J^^^^' 
upon  the  secretary  shall  cause  an  entry  or  memorial  tliereof 
to  be  made  in  the  same  manner  as  in  the  case  of  the  ori- 
ginal mortgage;  and  after  such  entry  every  such  transfer 
shall  entitle  the  transferee  to  the  full  benefit  of  the  original 
mortgage  or  bond  in  all  respects ;  and  no  party,  having 
made  such  transfer,  shall  have  power  to  make  void,  release, 
or  discharge  the  mortgage  or  bond  so  transferred,  or  any 
money  thereby  secured;  and  for  such  entry  the  company 
may  demand  a  sum  not  exceeding  the  prescribed  sum,  or, 
where  no  sum  shall  be  prescribed,  the  sum  of  two  shillings 
and  sixpence;  and  until  such  entry  the  company  shall  not 
be  in  any  manner  responsible  to  the  transferee  in  respect  of 
such  mortgage. 

48.  The  interest  of  the  money  borrowed  upon  any  such  Payment  of 
mortgage  or  bond  shall  be  paid  at  the  periods  appointed  in  monTet'bor- 
such  mortgage  or  bond,  and  if  no  period  be  appointed,  half-  rowed, 
yearly,  to  the  several  parties  entitled  thereto,  and  in  prefer- 
ence to  any  dividends  payable  to  the  shareholders  of  the 
company. 

49.  The  interest  on  any  such  mortgage  or  bond  shall  in""gstto  be 
not  be  transferrable,  except  by  deed  duly  stamped-  stamped. 

50.  The  company  may,  if  they  think  proper,  fix  a  period  Repayment 
for  the  repayment  of  the  principal  money  so  borrowed,  with  borrowed  at 
the  interest  thereof,   and  in  such  case  the  company  shall  a  time  fixed, 
cause  such  period  to  be  inserted  in  the  mortgage  deed  or 

bond ;  and  upon  the  expiration  of  such  period  the  principal 
sum,  together  with  the  arrears  of  interest  theron,  shall,  on 
demand,  be  paid  to  the  party  entitled  to  such  mortgage  or 
bond;  and  if  no  other  place  of  payment  be  inserted  in  such 
mortgaged  deed  or  bond,  such  principal  and  interest  shall 
be  payable  at  the  principal  office  or  place  of  business  of 
the  company. 

51.  If  no  time  be  fixed  in  the  mortgage  deed  or  bond  for  Repayment 
the  repayment  of  the  money  so  borrowed,  the  party  entitled  of  ™o"^y 
to  the  mortgage  or  bond  may,   at  the  expiration  or  at  any  where  no 
time  after  the  expiration  of  twelve  months  from  the  date  of  '"Die  fixed, 
such  mortgage  or  bond,  demand  payment  of  the  principal 

money  tliereby  secured  with  all  arrears  of  interest,  upon 
giving  six  months  previous  notice  for  that  purpose ;  and  in 
the  like  case  the  company  may  at  any  time  pay  off  the 
money  borrowed,  on  giving  the  like  notice;  and  every  such 
notice  shall  be  in  writing  or  print,  or  both,  and  if  given  by 
a  mortgagee  or  bond  creditor  sliall  be  delivered  to  the  secre- 
tary or  left  at  the  principal  office  of  the  company,   and  if 


Ixviii  Appendix — Statutes. 

given  by  the  company  shall  be  given  either  personally  to 
such  mortgagee  or  bond  ci'editor  or  left  at  his  residence  ; 
or  if  such  mortgagee  or  bond  creditor  be  unknown  to  the 
directors,  or  cannot  be  found  after  diligent  inquiry,  such 
notice  shall  be  given  by  advertisement  in  the  London  or 
Dublin  Gazette,  according  as  the  principal  office  of  the 
company  shall  be  in  England  or  Ireland,  and  in  some 
newspaper  as  after  mentioned. 

52,  If  the  company  shall  have  given  notice  of  their  in- 
tention to  pay  off  any  such  mortgage  or  bond  at  a  time 
when  the  same  may  lawfully  be  paid  oiF  by  them,  then  at 
the  expiration  of  such  notice  all  further  interest  shall  cease 
to  be  payable  on  such  mortgage  or  bond,  unless,  on  demand 
of  payment  made  pursuant  to  such  notice,  or  at  any  time 
thereafter,  the  company  shall  fail  to  paj'  the  principal  and 
interest  due  at  the  expiration  of  such  notice  on  such  mort- 
gage or  bond. 

53.  Where  by  the  special  act  the  mortgagees  of  the 
company  shall  be  empowered  to  enforce  the  payment  of  the 
arrears  of  interest,  or  the  arrears  of  principal  and  interest, 
due  on  such  mortgages,  by  the  appointment  of  a  receiver, 
then,  if  within  thirty  days  after  the  interest  accruing  upon 
any  such  mortgage  has  become  payable,  and  after  demand 
thereof  in  writing  the  same  be  not  paid,  the  mortgagee 
may,  without  prejudice  to  his  right  to  sue  for  the  interest  so 
in  arrear  in  any  of  the  superior  courts  of  law  or  equity, 
require  the  appointment  of  a  receiver,  by  an  application  to 
be  made  as  hereinafter  provided;  and  if  within  six  months 
after  the  principal  money  owing  upon  any  such  mortgage 
has  become  payable,  and  after  demand  thereof  in  writing 
the  same  be  not  paid,  the  mortgagee,  without  prejudice  to 
his  right  to  sue  for  such  principal  money  together  with  all 
arrears  of  interest,  in  any  of  the  superior  courts  of  law  or 
equity,  may,  if  his  debt  amount  to  the  prescribed  sum  alone, 
or  if  his  debt  does  not  amount  to  the  prescribed  sum,  he 
may,  in  conjunction  with  other  mortgagees  whose  debts, 
being  so  in  arrear,  after  demand  as  aforesaid,  shall,  together 
with  his,  amount  to  the  prescribed  sum,  require  the  appoint- 
ment of  a  receiver,  by  an  application  to  be  made  as  herein- 
after provided. 

Appoint-  54.  Every  application  for  a  receiver  in  the  cases  afore- 

inentofre-    said  shall  be  made  to  two  justices,  and  on  any  such  appli- 

ceiver.  cation  it  shall  be  lawful  for   such  justices,   by  order  in 

writing,  after  hearing  the  parties,  to  appoint  some  person  to 

receive  the  whole  or  a  competent  part  of  the  tolls  or  sums 

liable  to  the  payment  of  such  interest,  or  such  principal  and 


Interest  to 
cease  on  ex. 
piration  of 
notice  to  pay 
off  mortgage 
or   bond. 


Arrears  of 
interest, 
when  to  be 
enforced  by 
appointment 
uf  a  receiver. 


Arrears  of 
principal 
and  interest. 


8  Vict.  c.  16 — Companies  Clauses.  Ixix 

interest,  as  the  case  may  be,  until  such  interest,  or  until 
such  principal  and  interest,  as  tlie  case  may  be,  together 
with  all  costs,  including  the  charges  of  receiving  the  tolls  or 
sums  aforesaid,  be  fully  paid;  and  upon  such  appointment 
being  made  all  such  tolls  and  sums  of  money  as  aforesaid 
shall  be  paid  to  and  received  by  the  person  so  to  be  ap- 
pointed; and  the  money  so  to  be  received  shall  be  so  mudi 
money  received  by  or  to  the  use  of  the  party  to  whom  sucn 
interest,  or  such  principal  and  interest,  as  the  case  may  be, 
shall  be  then  due,  and  on  whose  behalf  such  receiver  shall 
have  been  appointed;  and  after  such  interest  and  costs,  or 
such  principal,  interest,  and  costs,  have  been  so  received, 
the  power  of  such  receiver  shall  cease. 

55.  At  all  seasonable  times  the  books  of  account  of  the  Access  to 
company  shall  be  open  to  the  inspection  of  the  respective  u^'^^g^u" 
mortgagees  and  bond  creditors  thereof,  with  liberty  to  take  mortgagees, 
extracts  therefrom,  without  fee  or  reward. 

And  with  respect  to  the  conversion  of  the  borrowed  money      Loans. 
into  capital,  be  it  enacted  as  follows: 

56.  It  shall  be  lawful  for  the  company,  if  they  think  fit.  Power  to 
iniless  it  be  otherwise  provided  by  the  special  act,  to  raise  convert  loan 
the  additional  sum  so  authorizetl  to  be  borrowed,   or  anyi"  °  '^^P'  ^  • 
part  thereof,  by  creating  new  shares  of  the  company,  instead 

of  borrowing  the  same,  or,  having  borrowed  the  same,  to 
continue  at  interest  only  a  part  of  such  additional  sinn,  and 
to  raise  part  thereof  by  creating  new  shares;  but  no  such 
augmentation  of  capital  as  aforesaid  shall  take  place  with- 
out the  previous  authority  of  a  general  meeting  of  the  com- 
pany. 

57.  The  capital  so  to  be  raised  by  the  creation  of  new  New  shares 
shares  shall  be  considered  as  part  of  the  general  capital,  and  ^°  ^^  consi- 
shall  be  subject  to  the  same  provisions  in  all  respects,  whe-  as  original 
ther  with  reference  to  the  payment  of  calls,  or  the  forfeiture  shares. 

of  shares  on  nonpayment  of  calls,  or  otherwise,  as  if  it  had 
been  part  of  the  original  capital,  except  as  to  the  times  of 
making  calls  for  such  additional  capital,  and  the  amount  of 
such  calls,  which  respectively  it  shall  be  lawful  for  the  com- 
pany from  time  to  time  to  fix  as  they  shall  think  fit. 

58.  If  at  tlie  time  of  any  such  augmentation  of  capital  If  old  shares 
taking  place  by  the  creation  of  new  shares  the  then  existing  at  prt-m'uni. 
shares  be  at  a  premium,  or  of  greater  actual  value  than  the  to  be  offered 
nominal  value  thereof,  then,  unless  it  be  otherwise  provided  to  ^^^  share- 
by  the  special  act,  the  sum  so  to  be  raised  shall  be  divided  °  ''^' 
into  shares  of  such  amount  as  will  conveniently  allow  the 

same  to  be  apportioned  among  the  then   shareholders  in 


Ixx  Appendix — Statutes. 

proportion  to  the  existing  shares  held  by  them  respectively; 
and  such  new  shares  shall  be  oiFered  to  the  then  share- 
holders in  the  proportion  aforesaid ;  and  such  offer  shall  be 
made  by  letter  under  the  hand  of  the  secretary  given  to  or 
sent  by  post,  addressed  to  each  shareholder  according  to  his 
address  in  the  shareholders  address  book,  or  left  at  his  usual 
OB  last  place  of  abode. 
Shares  to  59.  The  said  new  shares  shall  vest  in  and  belong  to  the 

vest  in  the     shareholders  who  shall  accept  the  same,  and  pay  the  value 
cepting ;        thereof  to  the  company  at  the  time  and  by  the  instalments 
otherwise  to   which  shall  be  fixed  by  the  company ;  and  if  any  share- 
of  by  the^      holder  fail(6j  for  one  month  after  such  offer  of  new  shares 
directors.       to  accept  the  same,  and  pay  the  instalments  called  for  in  re- 
spect thereof,  it  shall  be  lawful  for  the  company  to  dispose 
of  such  shares  in  such  manner  as  they  shall  deem  most  for 
the  advantage  of  the  company. 
If  not  at  a  60.  If  at  the  time  of  such  augmentation  of  capital  taking 

premium,  to  pj^^g  j.]^g  existinsT  shares  be  not  at  a  premium,   then  such 
be  issued  as    t^  i         /■         i  t  i       •  j  • 

company       new  shares  may  be  oi  such  amount,  and  may  be  issued  m 
think  fit.        such  manner  and  on  such  terms,   as  the  company  shall 
think  fit. 

Cunsolida-       And  with  respect  to  the  consolidation  of  the  shares  into 

tton  of     stock,  be  it  enacted  as  follows; 
Power  to  61.  It  shall  be  lawful  tor  the  company  irom  time  to  time, 

consolidate    with  the  consent  of  three-fifths  of  the  votes  of  the  share- 
stock,  holders  present  in  person  or  by  proxy  at  any  general  meet- 
ing of  the  company,  when  due  notice  for  that  purpose  shall 
have  been  given,  to  convert  or  to  consolidate  all  or  any  part 
of  the  shares  then  existing  in  the  capital  of  the  company, 
and  in  respect  whereof  the  whole  money  subscribed  shall 
have  been  paid  up,  into  a  general  capital  stock,  to  be  divided 
amongst  the  shareholdeos  according  to  their  rrspective  in- 
terests therein. 
Proprietors         62.  After  such  conversion  or  consolidation  shall  have 
of  stock  may  taken  place  all  the  provisions  contained  in  this  or  the  spe- 
same.  cial  act  which  require  or  imply  that  the  capital  of  the  com- 
pany shall  be  divided  into  shares  of  any  fixed  amount,  and 
distinguished  by  numbers,  shall,  as  to  so  much  of  the  capital 
as  shall  have  been  so  converted  or  consolidated  into  stock, 
cease  and  be  of  no  effect,  and  the  several  holders  of  such 
stock  may  thenceforth  transfer   their  respective  interests 
therein,  or  any  parts  of  such  interests,  in  the  same  manner 

(Zi)  See  Pearson  v.  London  and   Croydon  Railway  Company, 
9  Jur.  R.  314,  cited  ante,  cap.  VII. 


8  Vict.  c.  1 6 — Companies  Clauses.  Ixxi 

and  subject  to  the  same  regulations  and  provisions  as  or 
according  to  which  any  shares  in  the  capital  of  the  company 
might  be  transferred  under  the  provisions  of  this  or  the  spe- 
cial act;  and  the  company  shall  cause  an  entry  to  be  made 
in  some  book,  to  be  kept  for  that  purpose,  of  every  such 
transfer ;  and  for  every  such  entry  they  may  demand  any 
sum  not  exceeding  the  prescribed  amount,  or  if  no  amount 
be  prescribed  a  sum  not  exceeding  two  shillings  and  six- 
pence. 

63.  The  company  shall  from  time  to  time  cause  the  names  Register  of 
of  the  several  parties  who  may  be  interested  in  any  such 

stock  as  aforesaid,  with  the  amount  of  the  interest  therein 
possessed  by  them  respectively,  to  be  entered  in  a  book  to 
be  kept  for  the  purpose,  and  to  be  called  "  The  Register  of 
Holders  of  Consolidated  Stock;  "  and  such  book  shall  be 
accessible  at  all  seasonable  times  to  the  several  holders  of 
shares  or  stock  in  the  undertaking. 

64.  The  several  holders  of  such  stock  shall  be  entitled  to  Proprietors 
participate  in  the  dividends  and  profits   of  the  company,  tftie'J'todWi- 
according  to  the  amount  of  their  respective  interests  in  such  dends. 
stock,  and  such  interests  shall,  in  proportion  to  the  amount 

thereof,  confer  on  the  holders  thereof  respectively  the  same 
privileges  and  advantages,  for  the  purpose  of  voting  at  meet- 
ings of  the  company,  qualification  for  the  office  of  directors, 
and  for  other  purposes,  as  would  have  been  conferred  by 
shares  of  equal  amount  in  the  capital  of  the  company,  but 
so  that  none  of  such  privileges  or  advantages,  except  the 
participation  in  the  divivends  and  profits  of  the  company, 
shall  be  conferred  by  any  aliquot  part  of  such  amount  of 
consolidated  stock  as  would  not,  if  existing  in  shares,  have 
conferred  such  privileges  or  advantages  respectively. 

65.  And  be  it  enacted,  that  all  the  money  raised  by  the  Application 
company,  whether  by  subscriptions  of  the  shareholders  or  ""^  up  a  . 
by  loan  or  otherwise,  shall  be  applied,  firstly,  in  paying  the 

costs  and  expenses  incurred  in  obtaining  the  special  act, 
and  all  expenses  incident  thereto,  and,  secondly,  in  carrying 
the  purposes  of  the  company  into  execution  (c). 

And  with  respect  to  the  general  meetings  of  the  com-      Genera 
pany,  and  the  exercise  of  the  right  of  voting  by  the  share-     J'^^^^'S"- 
holders,  be  it  enacted  as  follows: 

( c)  As  to  the  effect  of  this  provision  in  giving  a  right  of 
action  against  the  company,  see  Treatise,  ante,  cap.  VII. 


Business  at 

ordinary 

meetings. 


Extraordi- 
nary meet- 
ings. 


Bu?ine?s  at 
extraordina- 
ry meetings 

Extraordi- 
nary meet- 
ines  may  be 
required  by 
sharehold- 
ers. 


Appen  dix — Statutes. 

66.  The  first  general  meeting  of  the  shareholders  of  the 
company  shall  be  held  within  the  prescribed  time,  or,  if  no 
time  be  prescribed,  within  one  month  after  the  passing  of 
the  special  act,  and  the  future  general  meetings  shall  be 
held  at  the  prescribed  periods,  and  if  no  periods  be  pre- 
scribed, in  the  months  of  February  and  August  ill  each 
year,  or  at  such  other  stated  periods  as  shall  be  appointed 
for  that  purpose  by  an  order  of  a  general  meeting;  and  the 
meetings  so  appointed  to  be  held  as  aforesaid  shall  be  called 
"  Ordinary  Meetings;"  and  all  meetings,  whether  ordinary 
or  extraordinary,  shall  be  held  in  the  prescribed  place,  if 
any,  and  if  no  place  be  prescribed,  then  at  some  place  to 
be  appointed  by  the  directoi-s((/). 

•  67.  No  matters,  except  such  as  are  appointed  by  this  or 
the  special  act  to  be  done  at  an  ordinary  meeting,  shall  be 
transacted  at  any  such  meeting,  unless  special  notice  of  such 
matters  have  been  given  in  the  advertisement  convening 
such  meeting. 

68.  Every  general  meeting  of  the  shareholders,  other 
than  an  ordinary  meeting,  shall  be  called  an  "Extraordinary 
Meeting;"  and  such  meetings  may  be  convened  by  the 
directors  at  such  times  as  the)'  think  fit. 

69.  No  extraordinary  meeting  shall  enter  upon  any  busi-' 
ness  not  set  forth  in  the  notice  upon  which  it  shall  have 

'  been  convened. 

70.  It  shall  be  lawful  for  the  prescribed  number  of  share- 
holders, holding  in  the  aggregate  shares  to  the  prescribed 
amount,  or  where  the  number  of  shareholders  or  amount  of 
shares  shall  not  be  prescribed,  it  shall  be  lawful  for  twenty 
or  more  shareholders  holding  in  the  aggregate  not  less  than 
one-tenth  of  the  capital  of  the  company,  by  writing  under 
their  hands,  at  any  time  to  require  the  directors  to  call  an 
extraordinary  meeting  of  the  company;  and  such  requisi- 
tion shall  fully  express  the  object  of  the  meeting  required  to 
be  called,  and  shall  be  left  at  the  office  of  the  company,  or 
given  to  at  least  three  directors,  or  left  at  their  last  or  usual 
places  of  abode;  and  forthwith  upon  the  receipt  of  such  re- 
quisition the  directors  shall  convene  a  meeting  of  the  share- 
holders;   and  if  for  twenty-one  days  after  such  notice  the 


(rf)  How  far  regulations  of  act  as  to  holding  of  meetings  to 
be  deemed  directory  or  imperative,  see  Fossv.  Harbottle,  2, Hare, 
4P5,  and  ante,  Treatise,  p.  237;  and  as  to  the  con&squences 
of  the  non-observance  of  such  regulations  in  any  essential 
point,  seeib.  pp.  70,  71. 


8  Vict.  c.  1 6 —  Companies  Clauses.  Ixxiii 

directors  fail  to  call  such  meeting,  the  prescribed  number,  or 
such  other  number  as  aforesaid,  of  shareholders,  qualified  as 
aforesaid,  may  call  such  meeting,  by  giving  fourteen  days 
public  notice  thereof,  (e) 

71.  Fourteen  days  public  notice  at  the  least  of  all  meet-  Notice  of 
ings,  whether  ordinary  or  extraordinary,  shall  be  given  by  ""^etings. 
advertisement,  which  shall  specify  the  place,  the  day,  and 

the  hour  of  meeting;  and  every  notice  of  an  extraordinary 
meeting,  or  of  an  ordinary  meeting,  if  any  other  business 
than  the  business  hereby  or  by  the  special  act  appointed  for 
ordinary  meetings  is  to  be  done  thereat,  shall  specify  the 
purpose  for  which  the  meeting  is  called,  (e) 

72.  In  order  to  constitute  a  meeting  (whether  ordinary  Quorum  for 
or  extraordinary)  there  shall  be  present,  either  personally  a  general 
or  by  proxy,  the  prescribed  quorum,  and  if  no  quorum  be  ^^^  '"^* 
prescribed  then  shareholders  holding  in  the  aggregate  not 

less  than  one  twentieth  of  the  capital  of  the  company,  and 
being  in  number  not  less  than  one  for  every  five  hundred 
pounds  of  such  required  proportion  of  capital,  unless  such 
number  would  be  more  than  twenty,  in  which  case  twenty 
shareholders  holding  not  less  than  one  twentieth  of  the 
capital  of  the  company,  shall  be  the  quorum;  and  if  within 
one  hour  from  the  time  appointed  for  such  meeting  the  said 
quorum  be  not  present  no  business  shall  be  transacted  at 
the  meeting,  other  than  the  declaring  of  a  dividend,  in  case 
that  shall  be  one  of  the  objects  of  the  meeting,  but  such 
meeting  shall,  except  in  the  case  of  a  meeting  for  the  elec- 
tion of  directors,  hereinafter  mentioned,  be  held  to  be  ad- 
journed sine  die. 

73.  At  every  meeting  of  the  company  one  or  other  of  Chairman  at 
the  following  persons  shall  preside  as  chairman ;  that  is  to  ^eTtings. 
say,  the  chairman  of  the  directors,  or  in  his  absence  the 

deputy  chairman  (if  any),  or  in  the  absence  of  the  chair- 
man and  deputy  chairman  some  one  of  the  directors  of  the 
company  to  be  chosen  for  that  purpose  by  the  meeting,  or 
in  the  absence  of  the  chairman  and  deputy  chairman  and 
of  all  the  directors,  any  shareholder  to  be  chosen  for  that 
purpose  by  a  majority  of  the  shareholders  present  at  snch 
meeting. 

74.  The  shareholders  present  at  any  such  meeting  shall  Business  at 
proceed  in  the  execution  of  the  powers  of  the  company  with  ^^^  adfoum- 
respect  to  the  matters  for  which  such  meeting  shall  have  ments. 
been  convened,  and  those  only:   and  every  such  meeting 
may  be  adjourned  from  time  to  time,  and  from  place  to 


(e)  See  n.  (d),  ante,  p.  Ixxii 

D  D 


Ixxiv 


Votes  of 
sharehold- 
ers. 


Manner  of 
voting. 


Regulations 
as  to  proxies. 


Votes  of 
joint  share- 
holders. 


Votes  of  lu 
uatics  and 
minors,  &c. 


Appendix — Statutes. 

place;  and  no  business  shall  be  transacted  at  any  adjourned 
meeting  other  than  the  business  left  unfinished  at  the 
meeting  from  which  such  adjournment  took  place. 

75.  At  all  general  meetings  of  the  company  every  share- 
holder shall  be  entitled  to  vote  according  to  the  prescribed 
scale  of  voting,  and  where  no  scale  shall  be  prescribed  every 
shareholder  shall  have  one  vote  for  every  share  up  to  ten, 
and  he  shall  have  an  additional  vote  for  every  five  shares 
beyond  the  first  ten  shares  held  by  him  up  to  one  hundred, 
and  an  additional  vote  for  every  ten  shares  held  by  him 
beyond  the  first  hundred  shares;  provided  always,  that  no 
shareholder  shall  be  entitled  to  vote  at  any  meeting  unless 
he  shall  have  paid  all  the  calls  then  due  upon  the  shares 
held  by  him. 

76.  The  votes  may  be  given  either  personally  or  by 
proxies,  being  shareholders,  authorized  by  writing  according 
to  the  form  in  the  schedule  (F.)  to  this  act  annexed,  or  in 
a  form  to  the  like  effect,  under  the  hand  of  the  shareholder 
nominating  such  proxy,  or  if  such  shareholder  be  a  cor- 
poration, then  under  their  common  seal ;  and  every  pro- 
position at  any  such  meeting  shall  be  determined  by  the 
majority  of  votes  of  the  parties  present,  including  proxies, 
the  chairman  of  the  meeting  being  entitled  to  vote,  not 
only  as  a  principal  and  proxy,  but  to  have  a  casting  vote  if 
there  be  an  equality  of  votes.  (J) 

77.  No  jierson  shall  be  entitled  to  vote  as  a  proxy  unless 
the  instrument  appointing  such  proxy  have  been  transmitted 
to  the  secretary  of  the  company  the  prescribed  period,  or,  if 
no  period  be  j^rescribed,  not  less  than  forty-eight  hours  be- 
fore the  time  appointed  for  holding  the  meeting  at  which 
such  proxy  is  to  be  used. 

78.  If  several  persons  be  jointly  entitled  to  a  share,  the 
person  whose  name  stands  first  in  the  register  of  share- 
holders as  one  of  the  holders  of  such  share  shall,  for  the  pur- 
pose of  voting  at  any  meeting,  be  deemed  the  sole  proprietor 
thereof;  and  on  all  occasions  the  vote  of  such  first-named 
shareholder,  either  in  person  or  by  proxy,  shall  be  allowed 
as  the  vote  in  respect  of  such  share,  without  proof  of  the 
concurrence  of  the  other  holders  thereof. 

79.  If  any  shareholder  be  a  lunatic  or  idiot,  such  lunatic 
or  idiot  may  vote  by  his  committee;  and  if  any  shareholder 
be  a  minor,  he  may  vote  b}'  his  guardian  or  any  one  of  his 
guardians;  and  every  such  vote  may  be  given  either  in 
person  or  by  proxy. 

(/)  As  to  stamp  on  proxy,  see  7  &  8  Vict.  c.  21 . 


S  Vict.  c.  16 — Companies  Clauses.  Ixxv 

80.  Whenever  in  this  or  the  special  act  the  consent  of  Proof  of  a 
any  particular  majority  of  votes  at  any  meeting  of  the  com-  Sfjjority^of 
pany  is  required  in  order  to  authorize  any  proceeding  of  the  votes  only 
company,  such  particular  majority  shall  only  be  required  to  required  in 
be  proved  in  the  event  of  a  poll  being  demanded  at  such  a  poll  being 
meeting;  and  if  such  poll  be  not  demanded,  then  a  decla-  demanded, 
ration  by  the  chairman  that  the  resolution  authorizing  such 
proceeding  has  been  carried,  and  an  entry  to  that  effect  in 

the  book  of  proceedings  of  the  company,  shall  be  sufficient 
authority  for  such  proceeding,  without  proof  of  the  number 
or  proportion  of  votes  recorded  in  favour  of  or  against  the 

same.  Appoint- 

Tnent  and 

And  with  respect  to  the  appointment  and  rotation  of  ^^^*^°l^^"-^ 
directors,  be  it  enacted  as  follows: 

81.  The  number  of  directors   shall   be   the   prescribed  Number  of 
number.  directors. 

82.  Where  the  company  shall  be  authorized  by  the  spe-  Power  to 

cial  act  to  increase  or  to  reduce  the  number  of  the  directors,  ^ary  the 

„  .  •  •     number  of 

it  shall  be  lawful  for  the  company,  from  time  to  time,  m  directors. 

general  meeting,  after  due  notice  for  that  purpose,  to  in- 
crease or  reduce  the  number  of  the  directors  within  the 
prescribed  limits,  if  any,  and  to  determine  the  order  of 
rotation  in  which  such  reduced  or  increased  number  shall 
go  out  of  office,  and  what  number  shall  be  a  quorum  at 
their  meeting. 

83.  The  directors  appointed  by  the  special  act  shall,  un-  Election  of 
less  thereby  otherwise  provided,  continue  in  office  until  the  directors, 
first  ordinary  meeting  to  be  held  in  the  year  next  after  that 

in  which  the  special  act  shall  have  passed;  and  at  such 
meeting  the  shareholders  present,  personally  or  by  proxy, 
may  either  continue  in  office  the  directors  appointed  by  the 
special  act,  or  any  number  of  them,  or  may  elect  a  new 
body  of  directors,  or  directors  to  supply  the  places  of  those 
not  continued  in  office,  the  directors  appointed  by  the  spe- 
cial act  being  eligible  as  members  of  such  new  body;  and 
at  the  first  ordinary  meeting  to  be  held  every  year  there- 
after the  shareholders  present,  personally  or  by  proxy,  shall 
elect  persons  to  supply  the  places  of  the  directors  then  re- 
tiring from  office,  agreeably  to  the  provisions  hereinafter 
contained;  and  the  several  persons  elected  at  any  such 
meeting,  being  neither  removed  nor  disqualified,  nor  having 
resigned,  shall  continue  to  l)e  directoi's  until  others  are 
elected  in  their  stead,  as  hereinafter  mentioned.  Existing  di- 

84.  If  at  any  meeting  at  which  an  election  of  directors  rectors  con- 
ought  to  take  place  the  prescribed  quorum  shall  not  be  pre-  ^"."^^  °f 

D  D  2 


Ixxvi  Appendix — Statutes. 

meeting  for  sent  within  one  hour  from  the  time  appointed  for  the  meet- 
directors  °  '^^S  ^°  election  of  directors  shall  be  made,  but  such  meeting 
shall  stand  adjourned  to  the  following  day  at  the  same  time 
and  place ;  and  if  at  the  meeting  so  adjourned  the  prescribed 
quorum  be  not  present  within  one  hour  from  the  time  ap- 
pointed for  the  meeting,  the  existing  directors  shall  con- 
tinue to  act  and  retain  their  powers  until  new  directors  be 
appointed  at  the  first  ordinary  meeting  of  the  following 
year. 
Qualification  85.  No  person  shall  be  capable  of  being  a  director  unless 
he  be  a  shareholder,  nor  unless  he  be  possessed  of  the  pre- 
scribed number,  if  any,  of  shares;  and  no  person  holding 
an  office  or  place  of  trust  or  profit  under  the  company,  or 
interested  in  any  contract  with  the  company,  shall  be  capa- 
ble of  being  a  director;  and  no  director  shall  be  capable  of 
accepting  any  other  office  or  place  of  trust  or  profit  under 
the  company,  or  of  being  interested  in  any  contract  with 
the  company,  during  the  time  he  shall  be  a  director,  (g) 
Cases  in  86.  If  any  of  the  directors  at  any  time  subsequently  to 

of  'directo"  ^i^  election  accept  or  continue  to  hold  any  other  office  or 
shall  become  place  of  trust  or  profit  under  the  company,  or  be  either  di- 
vacant.  rectly  or  indirectly  concerned  in  any  contract  with  the  com- 

pany, or  participate  in  any  manner  in  the  profits  of  any 
work  to  be  done  for  the  company,  or  if  such  director  at  any 
time  cease  to  be  a  holder  of  the  prescribed  number  of  shares 
in  the  company,  then  in  any  of  the  cases  aforesaid  the  office 
of  such  director  shall  become  vacant,  and  thenceforth  he 
shall  cease  from  voting  or  acting  as  a  director.  (/;) 
Share-  87.  Provided  always,  that  no  person,  being  a  shareholder 

i'ncor'por'a^ted  ^^  member  of  any  incorporated  joint  stock  company,  shall 
joint  stock  be  disqualified  or  prevented  from  acting  as  a  director  by 
company  not  reason  of  an_v  contract  entered  into  between  such  joint  stock 
by  reason^ of  Company  and  the  company  incorporated  by  the  special  act; 
contracts,  but  no  such  director,  being  a  shareholder  or  member  of  such 
joint  stock  company,  shall  vote  on  any  question  as  to  any 
contract  with  such  joint  stock  company. 
Rotation  88.  The  directors  appointed  by  the  special  act,  and  con- 

directors,      tinned  in  office  as  aforesaid,  or  the  directors  elected  to  sup- 
ply the  places  of  those  retiring  as  aforesaid,  shall,  subject  to 

{g)  As  to  what  not  a  contract  such  as  to  disqualify  a  party 
from  acting  as  director,  see  Sheffield,  Ashton-under-Lyne,  and 
Manchester  Railway  Company  v.  Wondcock,  7  M.  &  W.  S?'! ; 
S  C.  2  Railw.  Cas.  522,  and  ante,  p.  240. 

{h)  Under  this  clause  a  party  would,  it  seems,  vacate  his 
office  in  the  event  of  his  becoming  a  bankrupt,  though  not  by  a 
mere  equitable  mortgage.     See  ante,  p.  241,  242. 


8  Vict.c.  16 — Companies  Clauses.  Ixxvii 

the  provision  hereinbefove  contained  for  increasing  or  re- 
ducing the  number  of  directors,  retire  from  office  at  the 
times  and  in  the  proportions  following,  the  individuals  to 
retire  being  in  each  instance  determined  by  ballot  among 
the  directors,  unless  they  shall  otherwise  agree;  (that  is  to 
say,) 

At  the  end  of  the  first  year  after  the  first  election  of 
directors  the  prescribed  number,  and  if  no  number  be 
prescribed  one  third  of  such  directors,  to  be  determined 
by  ballot  among  themselves,  unless  they  shall  otherwise 
agree,  shall  go  out  of  office: 
At  the  end  'of  the  second  year  the  prescribed  number, 
and  if  no  number  be  prescribed  one  half  of  the  remain- 
ing number  of  such  directors,  to  be  determined  in  like 
manner,  shall  go  out  of  office  : 
At  the  end  of  the  third  year  the  prescribed  number,  and, 
if  no  number  be  prescribed,  the  remainder  of  such  di- 
rectors, shall  go  out  of  office: 
And  in   each   instance   the   places   of  retiring   directors 
shall  be  supplied  by  an  equal  number  of  qualified  share- 
holders; and  at  the  first  ordinary  meeting  in  every  subse- 
quent year  the  prescribed  number,  and  if  no  niunber  be 
prescribed  one  third  of  the  directors,  being  those  who  have 
been  longest  in  office,  shall  go  out  of  office,  and  their  places 
shall  be  supplied  in  like  manner;  nevertheless  every  director 
so  retiring  from  office  may  be  re-elected  immediately  or  at  any 
future  time,  and  after  such  re-election  shall,  with  reference 
to  the  going  out  by  rotation,  be  considered  as  a  new  direc- 
tor: provided  always,  that  if  the  prescribed  number  of  di- 
rectors be  some  number  not  divisible  by  three,  and   the 
number  of  directors  to  retire  be  not  prescribed,  the  directors 
shall  in  each  case  determine  what  number  of  directors,  as 
nearly  one  third  as  may  be,  shall  go  out  of  office,  so  that 
the  whole  number  shall  go  out  of  office  in  three  years. 

89.  If  any  director  die,  or  resign,  or  become  disqualified  supply  of 
or  incompetent  to  act  as  a  director,  or  cease  to  be  a  director  occasional 
by  any  other  cause  than  that  of  going  out  of  office  by  rota-  o^g°"f^  (j" 
tion  as  aforesaid,  the  remaining  directors,  if  they  think  pro-  rectors. 
per  so  to  do,  may  elect  in  his  place  some  other  sliareholder, 
duly  qualified,  to  be  a  director;    and  the  shareholder  so 
elected  to  fill  up  any  such  vacancy  shall  continue  in  office 
as  a  director  so  long  only  as  the  person  in  whose  place  he 
shall  have  been  elected  would  have  been  entitled  to  continue 
if  he  had  remained  in  office,  (i) 

(i)  This  clause  is  clearly  not  imperative  on  the  directory.     It 
is  no  ground,  accordingly,  for  setting  aside  proceedings  in  an 


Ixxviii  Appendix — Statutes. 

Powers  And  with  respect  to  the  powers  of  the  directors,  and  the 

of  Directors,  powers  of  the  company  to  be  exercised  only  in  general 
meeting,  be  it  enacted  as  follows: 

90.  The  directors  shall  have  the  management  and  super- 
the  company  intendence  of  the  affairs  of  the  company,  and  they  may 
to  be  exer-  lawfully  exercise  all  the  powers  of  the  companj-,  except  as 
'directors  ^^^  *•"  ^"*^^  matters  as  are  directed  by  this  or  the  special  act  to 
be  transacted  by  a  general  meeting  of  the  company,  but  all 
the  powers  so  to  be  exercised  shall  be  exercised  in  accord- 
ance with  and  subject  to  the  provisions  of  this  and  the  spe- 
cial act;  and  the  exercise  of  all  such  powers  shall  be  sub- 
ject also  to   the   control  and   regulation   of  any  general 
meeting  specially  convened  for  the  purpose,  but  not  so  as 
to  render  invalid  any  act  done  by  the  directors  prior  to  any 
resolution  passed  by  such  general  meeting,  {k) 
Powers  of         ^^-  Except  as  otherwise  provided  by  the  special  act,  the 
the  company  following  powers  of  the  companj',  (that  is  to  say,)  the  choice 
not  to  be  ex-  ^nd  removal  of  the  directors,  except  as  herein-before  men- 
directors,       tioned,  and  the  increasing  or  reducing  of  their  number 
where  authorized  by  the  special  act,  the  choice  of  auditors, 
the  determination  as  to  the  remuneration  (/)  of  the  directors, 
auditors,  treasurer,  and  secretary,  the  determination  as  to 
the  amount  of  money  to  be  borrowed  on  mortgage,  the  de- 
termination as  to  the  augmentation  of  capital,  and  the  de- 
claration of  dividends,  shall  be  exercised  only  at  a  general 
meeting  of  the  company. 

Proceedings      And  with  respect  to  the  proceedings  and  liabilities  of  the 

nf  Directors,  directors,  be  it  enacted  as  follows : 

Meetings  of      92.  The  directors  shall  hold  meetings  at  such  times  as 

directors.  they  shall  appoint  for  the  purpose,  and  they  may  meet  and 
adjourn  as  tiiey  think  proper,  from  time  to  time,  and  from 
place  to  place:  and  at  any  time  any  two  of  the  directors 
may  require  the  secretary  to  call  a  meeting  of  the  directors, 
and  in  order  to  constitute  a  meeting  of  directors  there  shall 
be  present  at  the  least  the  prescribed  quorum,  and  when  no 
quorum  shall  l)e  prescribed  there  shall  be  present  at  least 
one- third  of  the  directors;  and  all  questions  at  any  such 
meeting  shall  be  determined  by  the  majority  of  votes  of  ihe 
directors  present,  and  in  case  of  an  equal  division  of  votes, 

action  for  calls,  at  least  after  judgment  by  default,  that  the  di- 
rectors have  not  chosen  to  avail  themselves  of  it.  See  Thames 
Haven  Railway  Company  v.  Rose,  4  M.  &  Gr.  552,  and  ante,  24 1. 

{k)  As  to  powers  of  directors  generally,  see  ante,  p.  243. 

(/)  As  to  remuneration  of  directors,  see  ante,  p.  242. 


8    Vict.  c.  16 — Companies  Clauses.  Ixxix 

the  chairman  shall  have  a  casting  vote  in  addition  to  his 
vote  as  one  of  the  directors. 

93.  At  the  first  meeting  of  directors  held  after  the  pass-  Permanent 
ing  of  the  special  act,  and  at  the  first  meeting  of  the  direc-  ^I'^g^t^rs"  °^ 
tors  held  after  each  annual  appointment  of  directors,  the 
directors  present  at  such  meeting  shall  choose  one  of  the 
directors  to  act  as  chairman  of  the  directors  for  the  year 
following  such  choice,  and  shall  also,  if  they   think   fit, 

choose  another  director  to  act  as  deputy  chairman  for  the 
same  period;  and  if  the  chairman  or  deputy  chairman  die 
or  resign,  or  cease  to  he  a  director,  or  otherwise  become 
disqualified  to  act,  the  directors  present  at  the  meeting  next 
after  the  occurrence  of  such  vacancy  shall  choose  some 
other  of  the  directors  to  fill  such  vacancy;  and  every  such 
chairman  or  deputy  chairman  so  elected  as  last  aforesaid 
shall  continue  in  office  so  long  only  as  the  person  in  whose 
place  he  may  be  so  elected  would  have  been  entitled  to  con- 
tinue if  such  death,  resignation,  removal,  or  disqualification 
had  not  happened. 

94.  If  at  any  meeting  of  the  directors  neither  the  chair-  occasional 
man  nor  deputy  chairman  be  present,  the  directors  present  chairman  of 
shall  choose  some  one  of  their  number  to  be  chairman  of  ""■^'=i°fs- 
such  meeting. 

95.  It  shall  be  lawful  for  the  directors  to  appoint  one  or  Committees 
more  committees,  consisting  of  such  number  of  directors  as  o^  directors. 
they  think  fit,  within  the  prescribed  limits,  if  any,  and  they  powers  of 
may  grant  to  such  committees  respectively  power  on  behalf  committees. 
of  the  company  to  do  any  acts  relating  to  the  affairs  of  the 
company  which  the  directors  could  lawfully  do,  and  which 

they  shall  from  time  to  time  think  proper  to  intrust  to 
them. 

96.  The  said  committees  may  meet  from  time  to  time,  jjeetin?s  of 
and  may  adjourn  from  place  to  place,  as  they  think  proper,  co  mmittees. 
for  carrying  into  effect  the  purposes  of  their  appointment; 

and  no  such  committee  shall  exercise  the  powers  intrusted 
to  them  except  at  a  meeting  at  which  there  shall  be  present 
the  prescribed  quorum,  or  if  no  quorum  be  prescribed,  then 
a  quorum  to  be  fixed  for  that  purpose  by  tlie  general  body 
of  directors;  and  at  all  meetings  of  the  committees  one  of 
the  members  present  shall  be  appointed  chairman;  and  all 
questions  at  any  meeting  of  the  committee  shall  be  deter- 
mined by  a  majority  of  votes  of  the  members  present,  and 
in  case  of  an  equal  division  of  votes,  the  chairman  shall 
have  a  casting  vote  in  addition  to  his  vote  as  a  member  of 
the  committee. 


Ixxx  Appendix — Statutes. 

Contracts  by  97.  The  power  which  may  be  granted  to  any  such  cora- 
committee  niitiee  to  make  contracts,  as  well  as  the  power  of  the  direc- 
howtobeen-  f"''s  to  make  contracts  on  behalf  of  the  companj',  maylaw- 
tered  into,    fully  be  exercised  as  follows;  (that  is  to  say,) 

With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  be  by  law  required  to  be  in 
writing,  and  under  seal,  such  committee  or  the  direc- 
tors may  make  such  contract  on  behalf  of  the  company 
in  writing,  and  under  the  common  seal  of  the  com- 
pany, and  in  the  same  manner  may  vary  or  discharge 
the  same : 
With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  be  by  law  required  to  be  in 
writing,  and  signed  by  the  parties  to  be  charged  there- 
with, then  such  committee  or  the  directors  may  make 
such  contract  on  behalf  of  the  conrpany  in  writing, 
signed  by  such  committee  or  any  two  of  them,  or  any 
two  of  the  directors,  and  in  the  same  manner  may  vary 
or  discharge  the  same  : 
With  respect  to  any  contract  which,  if  made  between 
private  persons,  would  by  law  be  valid  although  made 
by  parol  only,  and  not  reduced  into  writing,  such  com- 
mittee or  the  directors  may  make  such  contract  on  be- 
half of  the  company  by  parol  only,  without  writing, 
and  in  the  same  manner  may  vary  or  discharge  the 
same: 
And  all  contracts  made  according  to  the  provisions  herein 
contained  shall  be  effectual  in  law,  and  shall  be  binding 
upon  the  company  and  their  snccessors,  and  all  other  parties 
thereto,  their  heirs,  executors,  administrators,  as  the  case 
may  be;  and  on  any  default  in  the  execution  of  any  such 
contract,  either  by  the  company  or  any  other  party  thereto, 
such  actions  or  suits  may  be  brought,  either  by  or  against 
the  compan}',  as  might  be  brought  had  the  same  contracts 
been  made  between  private  persons  only. 
Proceedings        98.  The  directors  shall  cause  notes,  minutes,  or  copies,  as 
to  be  entered  {|jg  ^^^^  ,-j-,jjy  require,  of  all  appointments  made  or  contracts 
in   a  book,  i-"iit  i,.i  i  i 

and  to  be  entered  into  by  the  directors,  and  or  the  orders  and  pro- 
evidence,  eeedings  of  all  meetings  of  the  company,  and  of  the  di- 
rectoi-s  and  committees  of  directors,  to  be  duly  entered  in 
books,  to  be  from  time  to  time  pro\nded  for  the  purpose, 
wiiich  shall  be  kept  under  the  superintendence  of  the 
directors;  and  every  such  entry  shall  be  signed  by  the  chair- 
man of  such  meeting;  and  such  entry,  so  signed,  shall  be 
received  as  evidence  in  all  courts,  and  before  all  judges, 
justices,  and  others,  without  proof  of  such  respective  meet- 


8  Vict.  c.  16 — Companies  Clauses.  Ixxxi 

ings  having  been  duly  convened  or  held,  or  of  the  persons 
making  or  entering  such  orders  or  proceedings  being  share- 
holders or  directors  or  members  of  committee  respectively, 
or  of  the  signature  of  the  chairman,  or  of  the  fact  of  his 
having  been  chairman,  all  of  which  last-mentioned  matters 
shall  be  presumed,  until  the  contrary  be  proved.  (?«) 

99.  All  acts  done  by  any  meeting  of  tlie  directors,  or  of  informalities 
a  committee  of  directors,  or  by  any  person  acting  as  a  di-  '°  appoint- 
rector,  shall,  notwithstanding  it  may  be  afterwards  discovered  rectors  not 
that  there  was  some  defect  in  the  appointment  of  any  such  to  invalidate 
directors  or  persons  acting  as  aforesaid,  or  that  they  or  any  Proceedings. 
of  them  were  or  was  disqualified,  be  as  valid  as  if  every 

such  person  liad  been  duly  appointed  and  was  qualified  to 
be  a  director,  (h) 

100.  No  director,  by  being  party  to  or  executing  in  his  Directors 
capacity  of  director  any  contract  or  other  instrument  on  not  to  oe 
behalf  of  the  company,  or  otherwise  lawfully  executing  any  fjable""'  ^ 
of  the  powers  given  to  the  directors,  shall  be  subject  to  be 

sued  or  prosecuted,  either  individually  or  collectively,  by 
any  person  whomsoever;  and  the  bodies  or  goods  or  lands 
of  the  directors  shall  not  be  liable  to  execution  of  any  legal 
process  by  reason  of  any  contract  or  other  instrument  so 
entered  into,  signed,  or  executed  by  them,  or  by  reason  of 
any  other  lawful  act  done  by  them  in  the  execution  of  any 
of  their  powers  as  directors;  and  the  directors,  their  heirs,  indemnity 
executors,  and  administrators,  shall  be  indemnified  out  of  of  directors, 
the  capital  of  the  company  for  all  payments  made  or  lia- 
bility incurred  in  respect  of  any  acts  done  by  them,  and  for 
all  losses,  costs,  and  damages  which  they  may  incur  in  the 
execution  of  the  powers  granted  to  them;  and  the  directors 
for  the  time  being  of  the  company  may  apply  the  existing 
funds  and  capital  of  the  company  for  the  purposes  of  such 
indemnity,  and  may,  if  necessary  for  that  purpose,  make 
calls  of  the  capital  remaining  unpaid,  if  any.  (o) 

And  with  respect  to  the  appointment  and  duties  of  au-     Auditors. 
ditors,  be  it  enacted  as  follows : 

(m)  As  to  duty  of  entering^  all  proceedings  of  company,  &c. 
and  the  consequences  of  the  neglect  to  do  so,  see  ante,  p.  251 ; 
also  as  to  what  a  sufficient  signature  of  minutes,  and  the  effect 
of  the  signature,  see  anie,  cap.  VII. 

(n)  See  question  as  to  effect  of  invalidity  of  appointment  of 
directors,  ante,  p.  72. 

{()]  As  to  liability  of  directors  generally,  and  when  respon- 
sible on  contracts  concluded  by  them,  see  ante,  p.  24o,  246. 
D  d5 


Ixxxil  Appendix-^Statutes. 

Election  of       101.  Except  where  by  the  special  act  auditors  shall  be 
an  itors.        directed  to  be  appointed  otherwise  than  by  the  company, 
the  company  shall,  at  the  first  ordinary  meeting  after  the 
passing  of  the  special  act,  elect  the  prescribed  number  of 
auditors,  and  if  no  number  is  prescribed  two  auditors,  in 
like  manner  as  is  provided  for  the  election  of  directors : 
and  at  the  first  ordinary  meeting  of  the  company  in  each 
year  thereafter  the  company  shall  in  like  manner  elect  an 
auditor  to  supply  the  place  of  the  auditor  then  retiring  from 
office,  accoi-ding  jto  the  provision  hereinafter  contained; 
and  every  auditor  elected  as  hereinbefore  provided,  being 
neither  removed  nor  disqualified,  nor  having  resigned,  shall 
continue  to  be  an  auditor  imtil  another  be  elected  in  his 
stead. 
Qualification      102.  Where  no  other  qualification  shall  be  prescribed  by 
of  auditors,    the  special  act,  every  auditor  shall  have  at  least  one  share 
in  the  undertaking;  and  he  shall  not  hold  any  office  in  the 
company,  nor  be  in  any  other  manner  interested  in  its  con- 
cerns, except  as  a  shareholder. 
Rotation    of      103.  One  of  sucli  auditors  (to  be  determined  in  the  first 
auditors.        instance  by  ballot  between  themselves,  unless  they  shall 
otherwise  agree,  and  afterwards  by  seniority)  shall  go  out 
of  office  at  the  first  ordinary  meeting  in  each  year ;  but  the 
auditor  so  going  out  shall  be  immediately  re-eligible,  and 
after  any  such  re-election  shall,  with  respect  to  the  going 
out  of  office  by  rotation,  be  deemed  a  new  auditor. 
Vacancies  in      104.  If  any  vacancy  take  place  among  the  auditors  in 

office  of  au-  ^j^g  course  of  the  current  year,  then  at  the  jreneral  meeting 
ditor.  ,  J        ■  c  i-i 

of  the  company  the  vacancy  may,  if  the  company  thmk 

fit,  be  supplied  by  election  of  the  shareholders. 

Failure  of         105.  The  provision  of  this  act  respecting  the  failure  of 

eiect'audi-"    ^'^  ordinary  meeting  at  which  directors  ought  to  be  chosen 

tors.  shall  apply,  mutatis  mutandis,  to  any  ordinary  meeting  at 

which  an  auditor  ought  to  be  appointed. 
Delivery  of  106.  The  directors  shall  deliver  to  sucli  auditors  the  half- 
sheet'^&c  by  ^^^''^y  o'"  other  periodical  accounts  and  balance  sheet,  four- 
directois  to  teen  days  at  the  least  before  the  ensuing  ordinary  meeting 
auditors.  j^j  -vyhich  the  same  are  required  to  be  produced  to  the  share- 
holders as  liereinafter  provided. 
Duty  of  107.  It  shall  be  the  duty  of  such  auditors  to  receive  from 

au  iiors.       j.|^g  directors  the  half  yearly  or  other  periodical  accounts  and 
balance  sheet  required  to  be  presented  to  the  shareholders, 
and  to  examine  the  same. 
Powers  of         108.  It  shall  be  lawful  for  the  auditors  to  e'uploy  such 
auditors.       accountants  and  other  persons  as  they  may  think  proper,  at 
the  expence  of  the  company,  and  they  shall  either  make  a 


8  Vict.  c.  16 — Companies  Clauses.  Ixxxiii 

special  report  on  the  said  accounts,  or  simply  confirm  the 
same ;  and  such  report  or  confirmation  shall  be  read,  toge- 
ther with  the  report  of  the  directors,  at  the  ordinary  meet- 
ing. 

And  with  respect  to  the  accountability  of  the  officers  of  ^ccoujita- 
the  company,  be  it  enacted  as  follows :  officers. 

109.  Before  any  person  intrusted  with  the  custody  or  Security  to 
control  of  monies,  whether  treasurer,  collector,  or  other  1?^^^^^^^^'^^^,^, 
officer  of  the  company,  shall  enter  upon  his  office,  the  di-  intrusted  "^ 
rectors  shall  take  sufficient  security  from  him  for  the  faithful  with  money, 
execution  of  his  office. 

110.  Every  officer  employed  by  the  company  shall  from  officers  to 
time  to  time,  when  required  by  the  directors,  make  out  and  account  on 
deliver  to  them,  or  to  any  person  apponited  by  them  lor  that 
purpose,  a  true  and  perfect  account  in  writing  under  his  hand 

of  all  monies  received  by  him  on  behalf  of  the  company; 
and  such  account  shall  state  how,  and  to  whom,  and  for 
what  purpose  such  monies  shall  have  been  disposed  of;  and, 
together  with  such  account,  such  officer  shall  deliver  the 
vouchers  and  receipts  for  such  payments ;  and  every  such 
officer  shall  pay  to  the  directors,  or  to  any  person  appointed 
by  them  to  receive  the  same,  all  monies  which  shall  appear 
to  be  owing  from  him  upon  the  balance  of  such  accounts,  (p) 

111.  If  any  such  officer  fail  to  render  such  account,  or  to  Summary  ' 
produce  and  dehver  up  all  the  vouchers  and  receipts  relating  remedy 

to  the  same  in  his  possession  or  power,  or  to  pay  the  balance  J^es'faUhic  I'o 
thereof  when  thereunto  required,  or  if  for  three  days  after  accoant. " 
being  thereunto  required  he  fail  to  deliver  up  to  the  directors, 
or  to  any  person  appointed  by  them  to  receive  the  same,  all 
papers  and  writings,  property,  effects,  matters,  and  things, 
in  his  possession  or  power,  relating  to  the  execution  of  this 
or  the  special  act,  or  any  act  incorporated  therewith,  or  be- 
longing to  the  company,  then,  on  complaint  thereof  being 
made  to  a  justice,  such  justice  shall  summon  such  officer  to 
appear  before  two  or  more  justices  at  a  time  and  place  to  be 
set  forth  in  such  summons,  to  answer  such  charge;    and 
upon  the  appearance  of  such  officer,  or  in  his  absence  upon 
proof  that  such  summons  was  personally  served  upon  him, 
or  left  at  his  last  known  place  of  abode,  such  justices  maj"' 
hear  and  determine  the  matter  in  a  summary  way,  and  may 

(p)  Notwithstanding  the  summary  remedy  g-iven  by  the 
next  section,  against  parties  failing  to  account,  &c.  qusere 
whether  the  company  might  not  have  an  action  against  them 
for  such  breach  of  duty.  See  Mayor,  etc.  of  Licfijteld  v,  Simpson, 
i)  Jurist,  1)89. 


Ixxxiv  Appendix — Statutes. 

adjust  and  declare  the  balance  owing  by  such  officer;  and 
if  it  appear,  either  upon  confession  of  such  officer  or  upon 
evidence,  or  upon  inspection  of  the  account,  that  any  monies 
of  the  company  are  in  the  hands  of  such  officer,  or  owing 
by  him  to  the  company,  such  justices  may  order  such  officer 
to  pay  the  same;  and  if  he  fail  to  pay  the  amount  it  shall 
be  lawful  for  such  justices  to  grant  a  warrant  to  levy  the 
same  by  distress,  or^  in  default  thereof,  to  committhe  offender 
to  gaol,  there  to  remain  without  bail  for  a  period  not  ex- 
ceeding three  months,  unless  the  same  be  sooner  paid,  (g) 
Officers  re-        112.  If  any  such  officer  refuse  to  make  out  such  account 
fusing  to  de-  in  writing,  or  to  produce  and  deliver  to  the  justices  the 
cuments,  &c!  several  vouchers  and  receipts  relating  thereto,  or  to  deliver 
to  be  im-     up  any  books,  papers,  or  writings,  property,  effects,  matters, 
prisoned.       ^j.  things,  in  his  possession  or  power,  belonging  to  the  com- 
pany,  such  justices  may  lawfully  commit  such  offender  to 
gaol,  there  to  remain  until  he  shall  have  delivered  up  all  the 
vouchers  and  receipts,  if  any,  in  his  possession  or  power, 
relating  to  such  accounts,  and  have  delivered  up  all  books, 
papers,    writings,  property,  effects,  matters,  and  things,  if 
any,  in  his  possession  or  power,  belonging  to  the  company. 
Where  offi-       113.  Provided  always,  that  if  any  director  or  Other  person 
cer  about  to  acting  on  behalf  of  the  company  shall  make  oath  that  he 
abscond   a,  »,  ^iv  i  ,  ■,  •     ,  ■ 

warrant  may  has  goocl  reasou  to  believe,  upon  grounds  to  be  stated  in  bis 

be  issued  in  deposition,  and  does  believe,  that  it  is  the  intention  of  any 
'tance"^^'  ""  ^^^^  officer  as  aforesaid  to  abscond,  it  shall  be  lawful  for  the 
justice  before  whom  the  complaint  is  made,  instead  of  issuing 
his  summons,  to  issue  his  warrant  for  the  bringing  such 
officer  before  such  two  justices  as  aforesaid;  but  no  person 
executing  such  warrant  shall  keep  such  officer  in  custody 
longer  than  twenty-four  hours,  without  bringing  him  before 
some  justice ;  and  it  shall  be  lawful  for  the  justice  before 
whom  such  officer  may  be  brought  either  to  discharge  such 
officer,  if  he  think  there  is  no  sufficient  ground  for  his 
detention,  or  to  order  such  officer  to  be  detained  in  custody, 
so  as  to  be  brought  before  two  justices,  at  a  time  and  place 
to  be  named  in  such  order,  unless  such  officer  give  bail  to 
the  satisfaction  of  such  justice  for  his  appearance  before  such 
justices  to  answer  the  complaint  of  the  company. 
Snfeties  not  114.  No  such  proceeding  against  or  dealing  with  any 
thareed'^'*'  ^^'^'^  officer  as  aforesaid  shall  deprive  the  company  of  any 
remedy  which  they  might  otherwise  have  against  such  offi- 
cer, or  any  surety  of  such  officer. 

(?)  See  n.  (p),  ante,  p.  Ixxxiii. 


8  Vict.  c.  1 6-~Companies  Clauses.  Ixxxv 

And  with  respect  to  the  keeping  of  accounts,  and  the    Accounts. 
tight  of  inspection  thereof  by  the  shareholders,  be  it  enacted 
as  follows: 

113.  The  directors  shall  cause  full  and  true  accounts  to  Accounts  to 
be  kept  of  all  sums  of  money  received  or  expended   on  ^^  ''^P'* 
account  of  the  company  by  the  directors  and  all  persons 
employed  by  or  under  them,  and  of  the  matters  and  things 
for  which  such  sums  of  money  shall  have  been  received  or 
disbursed  and  paid. 

116.  The  books  of  the  company  shall  be  balanced  at  the  Books  to  be 
prescribed  periods,  and,  if  no  periods  be  prescribed,  fourteen  balanced, 
days  at  least  before  each  ordinary  meeting;  and  forthwith 

on  the  books  being  so  balanced  an  exact  balanced  sheet  shall 
be  made  up,  which  shall  exhibit  a  true  statement  of  the 
capital  stock,  credits,  and  property  of  every  description  be- 
longing to  the  company,  and  the  debts  due  by  the  company 
at  the  date  of  making  such  balance  sheet,  and  a  distinct 
view  of  the  profit  or  loss  which  shall  have  arisen  on  the 
transactions  of  the  company  in  the  course  of  the  preceding 
half  year;  and  previously  to  each  ordinary  meeting  such 
balance  sheet  shall  be  examined  by  the  directors,  or  any 
three  of  their  number,  and  shall  be  signed  by  the  chairman 
or  deputy  chairman  of  the  directors. 

117.  The  books  so  balanced,  together  with  such  balance  inspection 
sheet  as  aforesaid,  shall  for  the  prescribed  periods,  and  if  no  ^    ^'ifare-'^ 
periods  be  prescribed  for  fourteen  days  previous  to  each  or-  holders  at 
dinary  meeting,  and  for  one  month  thereafter,  be  open  for  *'^t*d  times, 
the  inspection  of  the  shareholders  at  the  principal  office  or 

place  of  business  of  the  company :  but  the  shareholders  shall 
not  be  entitled  at  any  time,  except  during  the  periods  afore- 
said, to  demand  the  inspection  of  such  books,  unless  in 
virtue  of  a  written  order  signed  by  three  of  the  directors,  (r) 

118.  The  directors   shall   produce  to   the  shareholders  Balance 
assembled  at  such  ordinary  meeting  the  said  balance  sheet,  ^^eet  to  he 
applicable  to  the  period  immediately  preceding  such  meet-  meet^nK'*  *' 
ing,  together  with  the  report  of  the  auditors  thereon,  as 
hereinbefore  provided. 

1 19.  The  directors  shall  appoint  a  book-keeper  to  enter  Book-iteeper 
the  accounts  aforesaid  in  books  to  be  provided  for  the  pur-  to  allow  in- 
pose;  and  every  such  book-keeper  shall  permit  any  share-  the'accounts 
holder  to  inspect  such  books,  and  to  take  copies  or  extracts  at  the  ap- 
therefrom,  at  any  reasonable  time  durine:  the  prescribed  po'i'^d 

•^  or  times. 

(r)  Shareholder  held  not  entitled  to  inspect  books  of  company 
in  order  to  fish  out  a  defence  therefrom  to  actions  for  calls ;  Bir- 
mingham,  Bristol,  and  Thanien  Junction  Ruiltvai/  (Jm/ipany  v. 
IVhite,  1  A.  &  E.  (N.  S.)  282  j  S.  C.  2  R.  Cas.  863;  see  ante, 
p.  252. 


Ixxxvi  Appendix — Statutes. 

periods,  and  if  no  periods  be  prescribed,  during  one  fortnight 
before  and  one  month  after  every  ordinary  meeting;  and  if 
he  fail  to  permit  any  such  sharehohler  to  inspect  such  books, 
or  take  copies  or  extracts  therefrom,  during  the  periods 
aforesaid,  he  shall  forfeit  to  such  shareholder  for  every  such 
offence  a  sum  not  exceeding  five  pounds. 

Divi'lends.       And  with  respect  to  the  making  of  dividends,  be  it  enacted 

as  follows: 
Previously         120.  Previously  to  every  ordinary  meeting  at  which  a 
*f  ^fr'"'rr""ri"  *5i^'idend  is  intended  to  be  declared  the  directors  shall  cause 
a  scheme  to  ^  scheme  to  be  prepared,  shewing  the  profits,  if  any,  of  the 
be  prepared,  company  for  the  period  current  since  the  preceding  ordinary 
meeting  at  which  a  dividend  was  declared,  and  apportioning 
the  same,  or  so  much  thereof  as  they  may  consider  appli- 
cable to  the  purposes  of  dividend,  among  the  shareholders, 
according  to  (he   shares  held  by  them   respectively,   the 
amount  paid  thereon,  and  the  periods  during  which  the 
same  may  have  been  paid,  and  shall  exhibit  such  scheme  at 
such  ordinary  meeting,  and  at  such  meeting  a  dividend  may 
be  declared  according  to  such  scheme. 
Dividend  not       121.  The  company  shall  not  make  any  dividend  whereby 
to  be  made    their  capital  stock  will  be  in  any  degree  reduced:  provided 
dute capital!  always  that  the  word  "dividend"  shall  not  be  construed  to 
apply  to  a  return  of  any  portion  of  the  capital  stock,  with 
the  consent  of  all  the  mortgagees  and  bond  creditors  of  the 
company,  due  notice  being  given  for  tliat  purpose  at  an  ex- 
traordinary meeting  to  be  convened  for  that  object. 
Power  to  -122.  Before  apportioning  the  profits  to  be  divided  among 

set  opart  a    the  shareholders,  the  directors  may,  if  they  think  fit,  set 
fund  tor  con-  aside  thereout  such  sum  as  they  may  think  proper  to  meet 
ingencies.     contingencies,  or  for  enlarging,  repairing,  or  improving  the 
works  connected  with  the  undertaking,  or  any  part  thereof, 
and  may  divide  the  balance  only  among  the  shareholders. 
Dividend  not      123.  No  dividend  shall  be  paid  in  respect  of  any  share 
to  be  paid  un-  until  all  calls  then  due  in  respect  of  that  and   every  other 
Laid.''    ^^  ^  share  held  by  the  person  to  whom  such  dividend  may  be 
payable  shall  have  been  paid. 

Bye  LaivB,       And  with  respect  to  the  making  of  bye  laws,  be  it  enacted 

as  follows : 
Power  to  124,   It  shall  be  lawful  for  the  company  from  time  to 

f!J^^%o/''tj,g  time  to  make  such  bye  laws  as  they  think  fit,  for  the  pur- 

officersofthe  pose  of  regulating  the  conduct  of  the  officers  and  aervants 

company. 


8  Vict.  c.  16 — Companies  Clauses.  Ixxxvii 

of  the  company,  and  for  providing  for  the  due  management 
of  the  affairs  of  the  company  in  all  respects  whatsoever,  and 
from  time  to  time  to  alter  or  repeal  any  such  bye  laws,  and 
make  others,  provided  such  bye  laws  be  not  repugnant  to 
the  laws  of  that  part  of  the  United  Kingdom  where  the  same 
are  to  have  effect,  or  to  the  provisions  of  this  or  the  special 
act:  and  such  bye  laws  shall  be  reduced  into  writing,  and 
shall  have  affixed  thereto  the  common  seal  of  the  company; 
and  a  copy  of  such  bye  laws  shall  be  given  to  every  officer 
and  servant  of  the  company  affected  thereby(<). 

125.  It  shall  be  lawful  for  the  company,  by  such  bye-laws.  Fines  for 
to  impose  such  reasonable  penalties  upon  all  persons,  being  breach.of 
officers  or  servants  of  the  company,  offending  against  such  laws, 
bye  laws,  as  the  company  think  fit,  not  exceeding  five  pounds 

for  any  one  offence. 

126.  All  the  bye  laws  to  be  made  by  the  company  shall  Bye  laws  to 
be  so  framed  as  to  allow  the  justice  before  whom  any  penalty  ^^^°  '''■ani'^d 
imposed  thereby  may  be  sought  to  be  recovered,  to  order  ties  may^be  ' 
a  part  only  of  such  penalty  to  be  paid,  if  such  justice  shall  mitigated, 
think  fit. 

127.  The  production  of  a  written  or  printed  copy  of  the  Evidence  of 
bye  laws  of  the  company,  having  the  common  seal  of  the  ^y^  ''''^'*' 
company  affixed  thereto,  shall  be  sufficient  evidence  of  such 

bye  laws  in  all  cases  of  prosecution  under  the  same. 

And  with  respect  to  the  settlement  of  disputes  by  arbi-  ArbUration. 
tration,  be  it  enactod  as  follows : 

128.  When  any  dispute,  authorized  or  directed  by  this  or  wiiereques- 
the  special  act,  or  any  act  incorporated  tlierewitli,  to  be  set-  t'"""'  are  to 
tied  by  arbitration,  shall  have  ai'isen,  tiien,  unless  both  par-  mi„p^*^'by 
ties  shall  concur  in  the  appointment  of  a  single  arbitrator,  ariiitration, 
each  party,  on  the  request  of  the  other  party,  shall  by  writ-  f"''""'ators 
ing  under  his  hand  nominate  and  appoint  an  arbitrator  to  pointed'witii- 
•whom  such  dispute  shall  be  referred;  and  after  any  such  in  fourteen 
appointment  shall  have  been  made,  neither  party  shall  have  notice   " 
power  to  revoke  the  same  without  the  consent  of  the  other, 

nor  shall  the  death  of  either  party  operate  as  such  revoca- 
tion ;  and  if,  for  the  space  of  fourteen  days  after  any  such 
dispute  shall  have  arisen,  and  after  a  request  in  writing  shall 
have  been  served  by  the  one  party  on  the  other  party  to 
appoint  an  arbitrator,  such  last-mentioned  party  fail  toaj)- 
point  such  arbitrator,  then  upon  such  failure  the  party  mak- 

(<1  As  to  extent  of  power  of  making,  and  requisites  of  bye 
laws  under  prior  railway  acts,  see  ante,  pp.  247,  248.  See 
also  8  Vict.  c.  20,  ss.  109—1 11,  post. 


Ixxxviii  Appendit — Statutes. 

ilig  the  request,  and  having  himself  appointed  an  arbitrator, 
may  appoint  such  arbitrator  to  act  on  behalf  of  both  parties, 
and  such  arbitrator  may  proceed  to  hear  and  determine  the 
matters  which  shall  be  in  dispute;  and  in  such  case  the 
award  or  determination  of  such  single  arbitrator  shall  be 
final. 
Vacancy  of        1^9.  If  before  the  matters  so  referred  shall  be  determined 
arbitrator  to  any  abitrator  appointed  by  either  party  die,  or  become  in- 
^  supp  le  .   (.gp^ljlg  Q^  refuse  or  for  seven  days  neglect  to  act  as  arbi- 
trator, the  party  by  whom  such  arbitrator  was  appointed 
may  nominate  and  appoint  in  writing  some  other  person  to 
act  in  his  place ;    and  if  for  the  space  of  seven  days  after 
notice  in  writing  from  the  other  party  for  that  purpose  he 
fail  to  do  so,  the  remaining  or  other  arbitrator  may  proceed 
ex  parte ;  and  every  arbitrator  so  to  be  substituted  as  afore- 
said shall  have  the  same  powers  and  authorities  as  were 
vested  in  the  former  arbitrator  at  the  time  of  such  his  death, 
refusal,  or  disability  as  aforesaid. 
Appoint-  130.  When  more  than  one  arbitrator  shall  have  been  ap- 

ment  of  um.  pointed  such  arbitrators  shall,  before  they  enter  upon  the 
^^*^'  matters  referred  to  them,  nominate  and  appoint  by  writing 

under  their  hands  an  umpire  to  decide  on  any  such  matters 
on  which  they  shall  differ :  and  if  such  umpire  shall  die,  or 
refuse  or  for  seven  days  neglect  to  act,  they  shall  forthwith 
after  such  death,  refusal,  or  neglect  appoint  another  umpire 
in  his  place ;  and  the  decision  of  every  such  umpire  on  the 
matters  so  referred  to  him  shall  be  final; 
Board  of  1 3 1 .  If  in  either  of  the  cases  aforesaid  the  said  arbitra- 

trade  em-  tors  shall  refuse,  or  shall,  for  seven  days  after  request  of 
powered  to  either  party  to  such  arbitration,  neglect  to  appoint  an  um- 
nofpir", ''o"n  ph"e,  it  shall  be  lawful  for  the  board  of  trade,  if  they  think 
neglect  of  fit,  in  any  case  in  which  a  railway  company  shall  be  one 
tl'a^tors'in  V^^^Y  '^o  ^he  arbitration,  on  the  application  of  either  party 
ciise  of  rail-  to  such  arbitration,  to  appoint  an  umpire  ;  and  the  decision 
Way  com.      ^f  g^,},  Umpire  on  the  matters  on  which  the  arbitrators  shall 

differ  shall  be  final, 
n  f  132.  The  said  arbitrators  or  their  umpire  may  call  for  the 

Power  of  ar-  ,        .  „  ,  •       i  •  p 

bitrators  to  production  of  any  documents  m  the  possession  or  power  of 
call  for  either  party  which  they  or  he  may  think  necessary  for  de- 

)oo  s,     c.     tgi-^^jj^ji^g  t]jg  question  in  dispute,   and  may  examine  the 

parties  or  their  witnesses  on  oath,  and  administer  the  oaths 

necessary  for  that  purpose. 
Costs  to  be        133.  Except  where  by  this  or  the  special  act,  or  any  act 
inthediscre-  incorporated  therewith,  it  shall  be  otherwise  provided,  the 
tion  of  the      ^.^g^g  ^f  ^j^^  attending  every  such  arbitration  to  be  deter- 

arbitrators.  °  •' 


S  Vict.  c.  ]  6 — Companies  Clauses.  Ixxxix 

mined  by  the  arbitrators  shall  be  in  the  discretion  of  the 
arbitrators  or  their  umpires,  as  the  case  may  be. 

134.  The  submission  to  any   such   arbitration   may  be  Submission 
made  a  rule  of  any  of  the  superior  courts,  on  the  application  to^bitra- 
of  either  of  the  parties.  niade  rule 

of  court. 
And  with  respect  to  the  giving  of  notices,   be  it  enacted     Notica, 
as  follows  : 

135.  Any  summons  or  notice,  or  any  writ,  or  other  pro-  service  of 
ceeding,  at  law  or  in  equity,  requiring  to  be  served  upon  the  notices  upon 
company,  may  be  served  by  the  same  being  left  at,  or  trans-  '^°'"P'*"y- 
mitted  through  the  post  directed  to  the  principal  office  of 

the  company,  or  one  of  their  principal  offices  where  there 
shall  be  more  than  one,  or  being  given  personally  to  the 
secretary,  or  in  case  there  be  no  secretary  then  by  being 
given  to  any  one  director  of  the  company,  (u) 

136.  Notices  requiring  to  be   served  by  the  company  Service  by 
upon  the  shareholders  may,  unless  expressly  required  to  be  gharehoiV 
served  personally,  be  served  by  the  same  being  transmitted  ers. 
through  the  post  directed  according  to  the  registered  address 

or  other  known  address  of  the  shareholder,  within  such 
period  as  to  admit  of  its  being  delivered  in  the  due  course 
of  delivery  within  the  period  (if  any)  prescribed  for  the 
giving  of  such  notice:  and  in  proving  such  service  it  shall 
be  sufficient  to  prove  that  such  notice  was  properly  directed, 
and  that  it  was  so  put  into  the  post  office. 

137.  All  notices  directed  to  be  given  to  the  shareholders  Notices  to 
shall  with  respect  to  any  share  to  which  persons  are  jointly  J°'."'  P'"- 
entitled,  be  given  to  whichever  of  the  said  persons  shall  be  sha%°s"  ° 
named  first  in  the  register  of  shareholders;  and  notice  so 

given  shall  be  sufficient  notice  to  all  the  proprietors  of  such 
share. 

138.  All   notices  required  by  this  or  the  special  act,    or  Notices  by 
any  act  incorporated  therewith,    to  be  given  by  advertise-  ^'Ivefise- 
ment,  shall  be  advertised  in  the  prescribed  newspaper,  or  if 

no  newspaper  be  prescribed,  or  if  the  prescribed  newspaper 
cease  to  be  published,  in  a  newspaper  circulating  in  the  dis- 
trict within  which  the  company's  principal  place  of  business 
shall  be  situated. 

139.  Every  summons,   notice,   or  other  such  document  Authentica- 
requiring  authentication  by  the  company,   may  be  signed  »!""  °^  °°" 
by  two  directors,  or  by  the  treasurer  or  the  secretary  of  the 
company,    and  need  not  be  under  the  common  seal  of  the 
company,   and  the  same  may  be  in  writing  or  in  print,    or 

partly  in  writing  and  partly  in  print. 

(a)  See  Treatise,  ante,  c.  VII. 


Proof  of 
debts  in 
bankruptcy. 


Tender  of 
amends. 


Recovery  of 
Damages 

and 
Penalties. 
Provision 
for  damages 
not  other- 
wise provi- 
ded for. 


Distress 
against  the 
treasurer. 


Appendix — Statutes. 

140.  And  be  it  enacted,  that  if  any  person  against  whom 
the  company  shall  have  any  claim  or  demand  become  bank- 
rupt, or  take  the  benefit  of  any  act  for  the  relief  of  insol- 
vent debtors,  it  shall  be  lawful  for  the  secretary  or  treasurer 
of  the  company,  in  all  proceedings  against  the  estate  of 
such  bankrupt  or  insolvent,  or  under  any  fiat  sequestra- 
tion, or  act  of  insolvency  against  such  bankrupt  or  insol- 
vent, to  represent  the  company,  and  act  in  their  behalf,  in 
all  respects  as  if  such  claim  or  demand  had  been  the  claim 
or  demand  of  such  secretary  or  treasurer,  and  not  of  the 
company. 

141.  And  be  it  enacted,  that  if  any  party  shall  have 
committed  any  irregularity,  trespass,  or  other  wrongful  pro- 
ceeding in  the  execution  (r)  of  this  or  the  special  act,  or  by 
virtue  of  any  power  or  authority  thereby  given,  and  if, 
before  action  brought  in  respect  thereof,  such  party  make 
tender  of  sufficient  amends  to  the  party  injured,  such  last- 
mentioned  party  shall  not  recover  in  any  such  action;  and 
if  no  such  tender  shall  have  been  made,  it  shall  be  lawful 
for  the  defendant,  by  leave  of  the  court  where  such  action 
shall  be  pending,  at  any  time  before  issue  joined,  to  pay 
into  court  such  sum  of  money  as  he  shall  think  fit ;  and 
thereupon  such  proceedings  shall  be  had  as  in  other  cases 
where  defendants  are  allowed  to  pay  money  into  court. 

And  with  respect  to  the  recovery  of  damages  not  spe- 
cially provided  for,  and  penalties,  be  it  enacted  as  follows : 

142.  In  all  cases  where  any  damages,  costs,  or  expenses 
are  by  this  or  the  special  act,  or  any  act  incorporated  there- 
with, directed  to  be  paid,  and  the  method  of  ascertaming 
the  amount  or  enforcing  the  payment  thereof  is  not  pi*o- 
vided  for,  such  amount,  in  case  of  dispute,  shall  be  ascer- 
tained and  determined  by  two  justices ;  and  if  the  amount 
so  ascertained  be  not  paid  by  the  company  or  other  party 
liable  to  pay  the  same  within  seven  days  after  demand,  the 
amount  may  be  recovered  by  distress  of  the  goods  of  the 
company  or  other  party  liable  as  aforesaid;  and  the  justices 
by  whom  the  same  shall  have  been  ordered  to  be  paid,  or 
either  of  them,  on  application,  shall  issue  their  or  his  war- 
rant accordingly. 

143.  If  sufficient  goods  of  the  company  cannot  be  found 
whereon  to  levy  any  such  damages,  costs,  or  expenses,  pay- 

(x)  As  to  what  to  be  deemed  acts  done  in  the  execution  of 
the  act,  &c.  see  ante,  c.  VII. 


8  Vict.  c.  1 6 — Companies  Clauses.  xci 

able  by  the  company,  the  same  may,  if  the  amount  thereof 
do  not  exceed  twenty  pounds,  be  recovered  by  distress  of 
the  goods  of  the  treasurer  of  the  company  ;  and  the  justices 
aforesaid,  or  either  of  them,  on  application,  shall  issue  their 
or  his  warrant  accordingly :  but  no  such  distress  shall  issue 
against  the  goods  of  such  treasurer  unless  seven  days  pre- 
vious notice  in  writing,  stating  the  amount  so  due,  and 
demanding  payment  thereof,  have  been  given  to  such  trea- 
surer, or  left  at  his  residence ;  and  if  such  treasurer  pay 
any  money  under  such  distress  as  aforesaid,  he  m.iy  I'etain 
the  amount  so  paid  by  him,  and  all  costs  and  expenses 
occasioned  thereby,  out  of  any  money  belonging  to  the  com- 
pany coming  into  his  custody  or  control,  or  he  may  sue 
the  company  for  the  same. 

144.  Where  in  this  or  the  special  act,  or  any  act  incor-  Method  of 
porated  therewith,  any  question  of  compensation,  expenses,  wore^us? 
charges,  or  damages  is  referred  to  the  determination  of  any  tices  in  ques- 
one  justice,  or  more,  it  shall  be  lawful  for  any  justice,  upon  ''""*  '''      _ 
the  application  of  either  party,  to  summon  the  other  party    ^™^ses, 

to  appear  before  one  justice,  or  before  two  justices,  as  the 
case  may  require,  at  a  time  and  place  to  be  named  in  such 
summons ;  and  upon  the  appearance  of  such  parties,  or  in 
the  absence  of  any  of  them,  upon  proof  of  due  service  of  the 
summons,  it  shall  be  lawful  for  such  one  justice,  or  such  two 
justices,  as  the  case  may  be,  to  hear  and  determine  such 
question,  and  for  that  purpose  to  examine  such  parties  or 
any  of  them,  and  their  witnesses,  on  oath;  and  the  costs  of 
every  such  inquiry  shall  be  in  the  discretion  of  such  justice*, 
and  they  shall  determine  the  amount  thereof. 

145.  The  company  shall  publish  the  short  particulars  of  Publication 
the  several  offences  for  which  any  penalty  is  imposed  by  of  Penalties, 
this  or  the  special  act,  or  any  act  incorporated  therewith,  or 

by  any  bye  law  of  the  company  affecting  other  persons  than 
the  shareholders,  officers,  or  servants  of  the  company,  and  • 

of  the  amount  of  every  such  penalty,  and  shall  cause  such 
particulars  to  be  painted  on  a  board,  or  printed  upon  paper 
and  pasted  thereon,  and  shall  cause  such  board  to  be  hung 
up  or  affixed  on  some  conspicuous  part  of  the  principal 
place  of  business  of  the  company,  and  where  any  such 
penalties  are  of  local  application,  shall  cause  such  boards  to 
be  affixed  in  some  conspicuous  place  in  the  immediate 
neighbourhood  to  which  such  penalties  are  applicable  or 
hare  reference ;  and  such  particulars  shall  be  renewed  as 
often  as  the  same  or  any  part  thereof  is  obliterated  or 
destroyed  ;  and  no  such  penalty  shall  be  recoverable  unless 
it  shall  have  been  published  and  kept  published  in  the 
manner  herein-before  required. 


xcii  Appendix — Statutes. 

Penalty  for        146.  If  any  person  pull  down  or  injure  any  board  put  up 
boardTused    "'"  ^^xed  as  required  by  this  or  the  special  act,  or  any  act 
frirsuchpub-  incorporated  therewith,  for  the  purpose  of  publishing  any 
lication.         jjyg  jjj^  Q^  penalty,  or  shall  obliterate  any  of  the  letters  or 
figures  thereon,  he  shall  forfeit  for  every  such  offence  a  sum 
not  exceeding  five  pounds,  and  shall  defray  the  expenses 
attending  the  restoration  of  such  board. 
Penalties  to        147.  Every  penalty  or  forfeiture  imposed  by  this  or  the 
recovered"'^  Special  act,  or  any  act  incorporated  there\vith,  or  by  any 
before  two     bye  law  made  in  pursuance  thereof,  the  recovery  of  which 
justices.         is  not  otherwise  provided  for,  may  be  recovered  by  summary 
proceeding  before  two  justices ;  and  on  complaint  being 
made  to  any  justice  he  shall  issue  a  summons,  requiring  the 
party  complained  against  to  appear  before  two  justices  at  a 
time  and  place  to  be  named  in  such  summons ;  and  every 
such  summons  shall  be  served  on  the  party  oflending,  either 
in  person  or  by  leaving  the  same  with  some  inmate  at  his 
usual  place  of  abode  ;  and  upon  the  appearance  of  the  party 
complained  against,  or  in  his  absence,  after  proof  of  the  due 
service  of  such  summons,  it  shall  be  lawful  for  two  justices 
to  proceed  to  the  hearing  of  the  complaint,  and  that  although 
no  information  in  writing  or  in  print  shall  have  been  exhi- 
bited before  them,  and  upon  proof  of  the  offence,  either  by 
the  confession  of  the  party  complained  against,  or  upon  the 
oath  of  one  credible  witness  or  more,  it  shall  be  lawful  for 
such  justices  to  convict  the  offender,  and  upon  such  con- 
viction to  adjudge  the  offender  to  pay  the  penalty  or  for- 
feiture incurred,  as  well  as  such  costs  attending  the  con- 
viction as  such  justices  shall  think  fit. 
Penalties  148.  If  forthwith  upon  any  such  adjudication  as  afore- 

may  be  levied  said,  the  amount  of  the  penalty  or  forfeiture,  and  of  such 
costs  as  aforesaid,  be  not  paid,  the  amount  of  such  penalty 
and  costs  shall  be  levied  by  distress ;  and  such  justices,  or 
either  of  them,  shall  issue  their  or  his  warrant  of  distress 
accordingly. 
Imprison-  149.  It  shall  be  lawful  for  any  such  justice  to  order  any 

J?"""' '"  "!*■  offender  so  convicted  as  aforesaid  to  be  detained  and  kept  in 
tress.  "  safe  custody  until  return  can  be  conveniently  made  to  the 
warrant  of  distress  to  be  issued  for  levying  such  penalty  or 
forfeiture,  and  costs,  unless  the  offender  give  sufficient  secu- 
rity, by  way  of  recognizance  or  otherwise,  to  the  satisfacton 
of  the  justice,  for  his  appearance  before  him  on  the  day 
appointed  for  such  return,  such  day  not  being  more  than 
eight  days  from  the  time  of  taking  such  security ,  but  if 
before  issuing  such  warrant  of  distress  it  shall  appear  to  the 
justice,  by  the  admission  of  the  offender  or  otherwise,  that 


8  Vict.  c.  16 — Companies  Clauses.  xciii 

no  sufficient  distress  can  be  had  within  the  jurisdiction  of 
such  justice  whereon  to  levy  such  penalty  or  forfeiture,  and 
costs,  he  may,  if  he  thinks  fit,  refrain  from  issuing  such 
warrant  of  distress;  and  in  such  case,  or  if  such  warrant 
shall  have  been  issued,  and  upon  the  return  thereof  such  in- 
sufficiency as  aforesaid  shall  be  made  to  appear  to  the  justice, 
then  such  justice  shall,  by  warrant,  cause  such  offender  to  be 
committed  to  gaol,  there  to  remain  without  bail  for  any 
term  not  exceeding  three  months,  unless  such  penalty  or 
forfeiture,  and  costs,  be  sooner  paid  and  satisfied. 

150.  Where  in  this  or  the  special  act,  or  any  act  incor-  Distress  how 
porated  thesewith,  any  sum  of  money,  whether  in  the  nature  '°  ^^  levied. 
of  penalty  or  otherwise,  is  directed  to  be  levied  by  distress, 

such  sum  of  money  shall  be  levied  by  distress  and  sale  of 
the  goods  and  chattels  of  the  party  liable  to  pay  the  same  ; 
and  the  overplus  arising  from  the  sale  of  such  goods  and 
chattels,  after  satisfying  such  sum  of  money,  and  the  ex- 
penses of  the  distress  and  sale,  shall  be  returned  on  demand, 
to  the  party  whose  goods  shall  have  been  distrained. 

151.  No  distress  levied  bv  virtue  of  this  or  the  special  Distress  not 

1   S  .^,       1     11  1       1  1  unlawful  fur 

act,  or  any  act  incorporated  therewith,  shall  be  deemed  un-  wantof  form. 

lawful,  nor  shall  any  party  making  the  same  be  deemed  a 
trespasser,  on  account  of  any  defect  or  want  of  form  in  the 
summons,  conviction,  warrant  of  distress,  or  other  proceed- 
ing relating  thereto,  nor  shall  such  party  be  deemed  a 
trespasser  ab  initio  on  account  of  any  irregularity  afterwards 
committed  by  him,  but  all  persons  aggrieved  by  such  defect 
or  irregularity  may  recover  full  satisfaction  for  the  special 
damage  in  an  action  upon  the  case. 

1 52.  The  justices  by  whom  any  such  penalty  or  forfeiture  Application 
shall  be  imposed  may,  where  the  application  thereof  is  not  of  penalties, 
otherwise  provided  for,  award  not  more  than  one  half  thereof 

to  the  informer,  and  shall  award  the  remainder  to  the  over- 
seers of  the  poor  of  the  parish  in  which  the  offence  shall 
have  been  connnitted,  for  the  benefit  of  the  poor  of  such 
parish;  or  if  the  place  wherein  the  offence  shall  have  been 
committed  shall  be  extra-parochial,  then  such  justices' shall 
direct  such  remainder  to  be  applied  for  the  benefit  of  the 
poor  of  such  extra-parochial  place,  or  of  any  adjoining 
parish  or  district,  and  shall  order  the  same  to  be  paid  over 
to  the  proper  officer  for  that  purpose. 

153.  No  person   shall  be  liable  to  the  payment  of  any  Penalties  to 
penalty  or  forfeiture  imposed  by  virtue  of  this  or  the  special  •";  '^"^^  ['"■ 
act,  or  any  act  incorporated  therewith,  for  any  offence  made  months.  * 
cognizable,  before  a  justice,  unless  the  complaint  respecting 


JJamage  to 
bemaiiegood 
in  addition 
to  penalty. 


Appendix — Statutes . 

such  offence  shall  have  been  made  before  such  justice  within 
six  months  next  after  the  commission  of  such  offence. 

154.  If,  through  any  act,  neglect,  or  default  on  account 
whereof  any  person  shall  have  incurred  any  penalty  im- 
posed by  this  or  the  special  act,  or  any  act  incorporated 
therewith,  any  damage  to  the  property  of  the  company  shall 
have  been  committed  by  such  person,  he  shall  be  liable  to 
make  good  such  damage,  as  well  as  to  pay  such  penalty  ; 
and  the  amount  of  such  damages  shall,  in  case  of  dispute, 
be  determined  by  the  justices  by  whom  the  party  incurring 
such  penalty  shall  have  been  convicted  ;  and  on  non-pay- 
ment of  such  damages,  on  demand,  the  same  shall  be  levied 
by  distress,  and  such  justices,  or  one  of  them,  shall  issue 
their  or  his  warrant  accordingly. 

155.  It  shall  be  lawful  for  any  justice  to  summon  any 
person  to  appear  before  him  as  a  witness  in  any  matter  in 
which  such  justice  shall  have  jurisdiction,  under  the  pro- 
visions of  this  or  the  special  act,  or  any  act  incorporated 
therewith,  at  a  time  and  place  mentioned  in  such  summons, 
and  to  administer  to  him  an  oath  to  testify  the  truth  in  such 
matter ;  and  if  any  person  so  simimoned  shall,  without 
reasonable  excuse,  refuse  or  neglect  to  appear  at  the  time 
and  place  appointed  for  that  purpose,  having  been  paid  or 
tendered  a  reasonable  sum  for  his  expenses,  or  if  any  person 
appearing  shall  refuse  to  be  examined  upon  oath  or  to  give 
evidence  before  such  justice,  every  such  person  shall  forfeit 
a  sum  not  exceeding  five  pounds  for  every  such  offence. 

156.  It  shall  be  lawful  for  any  officer  or  agent  of  the 
company,  and  all  persons  called  by  him  to  his  assistance,  to 
seize  and  detain  any  person  who  shall  have  committed  any 
offence  against  the  provisions  of  this  or  the  special  act,  or 
any  act  incorporated  therewith,  and  whose  name  and  resi- 
dence shall  be  unknown  to  such  officer  or  agent,  and  convey 
him,  with  all  convenient  despatch,  before  some  justice,  vnXh- 
out  any  warrant  or  other  authority  than  this  or  the  special 
act;  and  such  justice  shall  proceed  with  all  convenient 
despatch  to  the  hearing  and  determining  of  the  complaint 
against  such  offender. 

157.  The  justices  before  whom  anj'  person  shall  be  con- 
victed of  any  offence  against  this  or  the  special  act,  or  any 
act  incorporated  therewith,  may  cause  the  conviction  to  be 
drawn  up  according  to  the  form  in  the  shedule  (G.)  to  this 
act  annexed. 

158.  No  proceeding  in  pursuance  of  this  or  the  special 
act,  or  any  act  incorporated  therewith,  shall  be  quashed  or 


I 


8  Vict,  c.  16 — Companies  Clauses.  xcv 

vacated  for  want  of  form,  nor  shall  the  same  be  removed  by  quashed  for 
certiorari  or  otherwise  into  any  of  the  superior  courts.  {^)    ^^"^^   °^^- 

Appeal. 

159.  If  any  party  shall  feel  aggrieved  by  any  determi-  ?"''*'?*''''. 
..  /  /.    /         „  .oo  .,,  •'       •>    .  .  lowed  to  lu- 
nation  or  adjudication  ot   any  justice  with  respect  to  any  peai  to  quar- 

penalty  or  forfeiture  under  the  provisions  of  this  or  the  ter  sessions 
special  act,  or  any  act  incorporated  therewith,  such  party  ""cuHt'y!^ 
may  appeal  to  the  general  quarter  sessions  for  the  county 
or  place  in  which  the  cause  of  appeal  shall  have  arisen  ; 
but  no  such  appeal  shall  be  entertained  unless  it  be  made 
within  four  months  next  after  the  making  of  such  determi- 
nation or  adjudication,  nor  unless  ten  days  notice  in  writing 
of  such  appeal,  stating  the  nature  and  grounds  thereof,  be 
given  to  the  party  against  whom  the  appeal  shall  be  brought, 
nor  unless  the  appellant  forthwith  after  such  notice  enter 
into  recognizances,  with  two  sufficient  sureties,  before  a 
justice,  conditioned  duly  to  prosecute  such  appeal,  and  to 
abide  the  order  of  the  court  thereon. 

160.  At  the  quarter  sessions  for  which  such  notice  shall  '^"l"'*"  ^ 
1         •  1111  11  11  •         1      make  such 
be  given  the  court  shall  proceed  to  hear  and  determine  the  order  as  they 
appeal  in  a  summary  way,  or  they  may,  if  they  think  fit,  think  rea- 
adjourn  it  to  the  following  sessions;  and  upon  the  hearing  ^°^^ 

of  such  appeal  the  court  may,  if  they  think  fit,  mitigate  any 
penalty  or  forfeiture,  or  they  may  confirm  or  quash  the 
adjudication,  and  order  any  money  paid  by  the  appellant, 
or  levied  by  distress  upon  his  goods,  to  be  returned  to  him, 
and  may  also  order  such  further  satisfaction  to  be  made  to 
the  party  injured  as  they  may  judge  reasonable ;  and  they 
may  make  such  order  concerning  the  costs,  both  of  the  ad- 
judication and  of  the  appeal,  as  they  may  think  reasonable. 

And  with  respect  to  the  pi'ovision  to  be  made  for  affording    ■^'^'i^f  *? 
access  to  the  special  act  by  all  parties  interested,  be  it 
enacted  as  follows : 

161.  The  company  shall,  at  all  times  after  the  expiration  Copies  of 
of  six  months  after  the  passing  of  the  special  act,  keep  in  to  b"\e''pt 
their  principal  office  of  business  a  copy  of  the  special  act,  and  depo- 
printed  by  the  printers  to  her  Majesty,  or  some  of  them  ;  ^}[*^'  "["y^,^ 
and  where  the  undertaking  shall  be  a  railway,  canal,  or  other  inspected, 
like  undertaking,  the  works  of  which  shall  not  be  confined 

to  one  town  or  place,  shall  also  within  the  space  of  such 
six  months,  deposit  in  the  office  of  each  of  the  clerks  of  the 
peace  of  the  several  counties  into  which  the  works  shall 
extend,  and  in  tlie  office  of  the  town  clerk  of  every  burgh 

{'j)  As  to  effect  of  this  clause,  see  Treatise,  c.  VII. 


xcvi  Appendix — Statutes. 

or  city  into  which  or  within  one  mile  of  which  the  works 
shall  extend,  a  copy  of  such  special  act  so  printed  as  afore- 
said ;  and  the  said  clerks  of  the  peace  and  town  clerks  shall 
receive,  and  they  and  the  company  respectively  shall  retain, 
'  the  said  copies  of  the  special  act,  and  shall  permit  all  persons 

interested  to  inspect  the  same,  and  make  extracts  or  copies 
therefrom,  in  the  like  manner  and  upon  the  like  terms  and 
under  the  like  penalty  for  default  as  is  provided  in  the  case 
of  certain  plans  and  sections,  by  an  act  passed  in  the  first 
7  W.4.&       year  of  the  reign  of  her  present  Majesty,  intituled  "  An  Act 
1  Vict.  c.  83.  to  compel  Clerks  of  the  Peace  for  Counties  and  other  Persons 
to  take  the  Custody  of  such  Documents  as  shall  be  directed 
to  be  deposited  with  them  under  the  Standing  Orders  of 
either  House  of  Parliament." 
Penalty  on         162.  If  the  company  shall  fail  to  keep  or  deposit  ashere- 
tompany       inbefore  mentioned  any  of  the  said  copies  of  the  special  act, 
keep'o/de-     ^hey  shall  forfeit  twenty  pounds  for  every  such  offence,  and 
posit  such      also  five  pounds  for  every  day  afterwards  during  which  such 
copies.  copy  shall  be  not  so  kept  or  deposited. 

Act  not  to         153    And  be  it  enacted,  that  this  act  shall  not  extend  to 

e«tenn  to         o      ^i       j 

Scotland.       Scotland. 

For  recover-      164.  Provided  always,  and  be  it  enacted,  that  if  any 
'"^intt  ^        shareholder  residing  in  Scotland  shall  fail  to  pay  the  amount 
shareholders  of  any   Call  made  upon  him  by  the  company  in  respect  of 
residing  in     ^ny  share  held  by  him,  it  shall  be  lawful  for  the  company  to 
CO  s,n  .      proceed  against  him  in  Scotland,  and  to  sue  for  and  recover 
the  amount  of  such  call,  or  to  declare  such  share  forfeited, 
in  such  manner  as  is  by  "  The  Companies  Clauses  Consoli- 
dation ("Scotland)  Act,   1845,"  in  case  the  same  shall  pass 
into  a  law,  provided  in  regard  to  shareholders  of  any  com- 
pany in  Scotland. 
Art  may  be        165.  And  be  it  enacted,  that  this  act  may  be  amended 
amended.&c.  ^j.  j-gpealed  by  any  act  to  be  passed  in  this  session  of  par- 
liament. 


8  Vict.  c.  16. — Companies  Clauses.  xcvii 


SCHEDULES  referred  to  by  the  foregoing  Act. 


Schedule  (A.) 

Form  of  Certificate  of  Share. 

"  The  Company." 

Number 

This  is  to  certify,  that  A.  B.  of  is  the  proprietor  of  the 

share  Number  of  "The  Company,"  subject  to  the 

regulations  of  the  said  company.   Given  under  the  common  seal 
of  the  said  company,  the  day  of  in  the  year  of  our 

Lord 


Schedule  (B.) 
Form  of  Transfer  of  Shares  or  Stock. 

I  of  in  consideration  of  the  sum  of  paid 

to  me  by  of  do  hereby  transfer  to  the  said 

share  [or  shares],  numbered  in   the  undertaking  called 

"The  Company"[or  pounds  consolidated  stock  in 

the  undertaking  called  "  The  Company,"  standing  (or 

part  of  the  stock  standing)  in  my  name  in  the  books  of  the  com- 
pany,] to  hold  unto  the  said  his  executors,  administrators, 
and  assigns,  \_or  successors  and  assigns], subject  to  the  several 
conditions  on  which  I  held  the  same  at  the  time  of  the  execution 
hereof;  and  I  the  said  do  hereby  agree  to  take  the  said 
share  [or  shares]  [or  stock],  subject  to  the  same  conditions.  As 
witness  our  hands  and  seals,  the  day  of 


Schedule  (C.) 
Form  of  Mortgage  Deed. 
"  The  Company.  " 

Mortgage,  Number  £ 

By  virtue  of  [Aere  name  the  special  act^,  we,  "  The 
Company,"  in  consideration  of  the  sum  of  pounds  paid  to 

ushy  A.  -B  of  ,  do  assign  unto  the  said  A .  B.,  his  executors, 
administrators,  and  assigns,  the  said  undertaking,  [and  {in  case 
such  loan  shall  be  in  anticipation  of  the  capital  authorized  to  be 
raised)  all  future  calls  on  shareholders,]  and  all  the  tolls  and 
sums  of  money  arising  by  virtueof  the  said  act,  and  all  the  estate, 
right,  title,  and  interest  of  the  company  in  the  same ;  to  hold  unto 
the  said  A.  B.,  his  executors,  adminstrators  and  assigns,  until 
the  said  sum  of  pounds,  together  with  interest  for  the  same 

E  e 


1 


Appendix — Statutes. 

at  the  rale  of  for  every  one  hundred  pounds  by  the  year, 

be  satisfied  [the  principal  sum  to  be  repaid  at  the  end  of 
years  from  the  date  hereof  (in  case  any  period  be  agreed  upon  for 
that  purpose)^  [at  or  any  place  of  pay  merit  other  than  the 

principal  office  of  the  company'].    Given  under  our  common  seal^. 
this        day  of        in  the  year  of  our  Lord  . 


Schedule  (D.) 

Form  of  Bond. 

"  The  Company. " 

Bond,  Number  £ 

By  virtue  of  [Acre  name  the  special  act],  we,  "  The 
Company,''  in  consideration  of  the  sum  of      pounds,  to  us  in 
hand  paid  by  ^.  J5.  of  do  bind  ourselves  and  our  succes- 

sors unto  the  said  ^.  B.,  his  executors,  administrators,  and 
assigns,  in  the  penal  sum  of  pounds. 

The  condition  of  the  above  obligation  is  such,  that  if  the  said 
company  shall  pay  to  the  said  A.  B.,  his  executors,  administra- 
tors, or  assigns,  [at  (in  case  any  other  place  of  payment 
than  the  principal  office  of  the  company  be  intended),]  on  the 
day  of  which  will  be  in  the  year  one  thousand  eight 
hundred  and  ,  the  principal  sum  of  pounds,  toge- 
ther with  interest  for  the  same  at  the  rate  of  pounds  per 
centum  per  annum,  payable  half-yearly  on  the  day  of 
and  day  of  ,  then  the  above-written  obligation  is  to 
become  void,  otherwise  to  remain  in  full  force.  Given  under 
our  common  seal,  this  day  of  one  thousand  eight 
hundred  and 


Schedule  (E.) 

Form  of  Transfer  of  Mortgage  or  Bond. 

I  A.  B.  of  in  consideration  of  the  sum  of  paid  to 

me  by  G.  /f.  of  do  hereby  transfer  to  the  said  G.  H.,  his 

executors,  administrators,  and  assigns,  a  certain  bond  [^or  mort- 
gage,] Number  made  by  "  The  Company  "  to 
bearing  date  the  day  of  for  securing  the  sum  of 
and  interest  [or,  if  such  transfer  be  by  endorsement . 
the  within  security],  and  all  my  right,  estate,  and  interest  in  and 
to  the  money  thereby  secured  [and  if  the  transfer  be  of  a  mort- 
gage, and  in  and  to  the  tolls,  money,  and  property  thereby 
assigned].  In  witness  whereof  I  have  hereunto  set  my  hand 
and  seal,  this  day  of  one  thousand  eight  hundred 
and 


8  Vict.  c.  16 — Companies  Clauses.  xcix 

Schedule  (F.) 

Form  of  Proxy. 

A.  B.  one  of  the  proprietors  of  "  The  Company," 

doth  hereby  appoint  C.  D.  of  to  be  the  proxy  of  the  said 

A.B„  in  his  absence  to  vote  in  his  name  upon  any  matter  relating 
to  the  undertaking  proposed  at  the  meeting  of  the  proprietors  of 
the  said  company  to  be  held  on  the  day  of  next,  in 

such  manner  as  he  the  said  C.  D.  doth  think  proper.  In  witness 
whereof  the  said  A.  B.  hath  hereunto  set  his  hand  \^or  if  a  cor. 
poratiort,  say  the  common  seal  of  the  corporation],  the  day 
of  one  thousand  eight  hundred  and 


Schedule  (G.) 

Form  of  Conviction. 
to  wit. 
Be  it  remembered,  that  on  the  day  of  in  the  year 

of  our  Lord  J.  B.  is  convicted  before  us,  C.,D.,  two  of 

her  majesty's  justices  of  the  peace  for  the  county  of  \_here 

describe  the  offence  generally,  and  the  time  and  place  when  and 
where  committed^,  contrary  to  the  [Acre  name  the  special  act]. 
Given  under  our  hands  and  seals,  the  day  and  year  first  above 
written.  C. 

D. 


F.r  2 


Appendix — Statutes. 


8  Vict.  c.  18. 

yln  Act  for  consolidating  in  one  Act  certain  Pro- 
visions usually  inserted  in  Acts  authorizing  the 
taking  of  Lands  for  Undertakings  of  a  Public 
Nature.  [8th  May,  1845.] 

Whereas  it  is  expedient  to  comprise  in  one  general  act 

sundry  provisions  usually  introduced  into  acts  of  parliament 

relative  to  the  acquisition  of  lands  required  for  undertakings 

or  works  of  a  public  nature,  and  to  the  compensation  to  be 

made  for  the  same,  and  that  as  well  for  the  purpose  of 

avoiding  the  necessity  of  repeating  such  provisions  in  each 

of  the  several  acts  relating  to  such  undertakings  as  for 

ensuring  greater  uniformity  in  the  provisions  themselves: 

May  it  therefore  please  your  Majesty  that  it  may  be  enacted, 

and  be  it  enacted  by  the  Queen's  most  excellent  Majesty, 

by  and  with  the  advice  and  consent  of  the  lords  spiritual 

and  temporal,  and  commons,  in  this  present  parliament 

Act  to  apply  assembled,  and  by  the  authority  of  the  same,  That  this  Act 

to  all  under-  shall  apply  to  every  undertaking  authorized  by  any  act 

thorized  by    which  shall  hereafter  be  passed,  and  which  shall  authorize 

acts  here-     the  purchase  or  taking  of  lands  for  such  undertaking,  and 

*asYed^°  '"^    ^^^'^  ^^^  ^^^^^  ^^  incorporated  with  such  act;  and  all  the 

clauses  and  provisions  of  this  act,  save  so  far  as  they  shall 

be  expressly  varied  or  excepted  by  any  such  act,  shall  apply 

to  the  undertaking  authorized  thereby,  so  far  as  the  same 

shall  be  ajjplicable  to  such  undertaking,  and  shall,  as  well  as 

the  clauses  and  provisions  of  every  other  act  which  shall  be 

incorporated  with  such  act,  form  part  of  such  act,  and  be 

construed,  together  therewith,  as  forming  one  act. 

Interpreta-         And  with  respect  to  I  he  construction  of  this  act  and  of 

tlons  in  this  ^cts  to  be  incorporated  therewith,  be  it  enacted  as  follows: 

•'''^Special  2.  The  expression   "the  special  act,"  used  in  this  act, 

act;"  shall  be  construed  to  mean  any  act  which  shall  be  hereafter 

passed  which  shall  authorize  the  taking  of  lands  for  the 

undertaking  to  which  the  same  relates,  and  with  which  this 

act  shall  be  so  incorporated  as  aforesaid;   and  the  word 

"  Prescrib-     "prescribed,"    used  in  this  act  in  reference  to  any  matter 

ed;"  herein  stated,  shall  be  construed  to  refer  to  such  matter  as 

the  same  shall  be  prescribed  or  provided  for  in  the  special 

act,  and  the  sentence  in  which  such  word  shall  occur  shall 

be  construed  as  if,  instead  of  the  word   "  prescribed,"  the 

expression  "  prescribed  for  that  purpose  in  the  special  act," 


8  Vict.  c.  18 — Lands  Clauses.  ci 

had  been  used;  and  the  expression  "the  works"  or  "the  "The  ^^ 
undertaking"  shall  mean    the    works    or  undertaking,   of  ^''"'^  *' 
whatever  nature,  which  shall  by  the  special  act  be  authorized 
to  be  executed;   and  the  expression  "the  promoters  of  the  "Promoters 
undertaking"  shall  mean  the   parties,  whether  company,  of  the  under- 
undertakers,  commissioners,  trustees,  corporations,  or  private  ^^  '"^* 
persons,  by  the  special  act  empowered  to  execute  such  works 
or  undertaking. 

3.  The  following  words  and  expressions,  both  in  this  and  J°*«^'P''^*^-. 
the   special  act,  shall  have  the  several  meanings  hereby  ^nd  the  spe- 
assigned  to   them,  unless  there  be  something  either  in  the  ciai  act ; 
subject  or  context  repugnant  to  such  construction  ;  (that  is 
to  say,) 

Words  importing  the  singular  number  only  shall  include  Number; 
the  plural  number,  and  words  importing  the  plural 
number  only  shall  include  the  singular  number : 
Words  importing  the  masculine  gender  only  shall  include  Gender ; 

females : 
The  word  "lands"  shall  extend  to  messuages,  lands,  "Lands;" 

tenements,  and  hereditaments  of  any  tenure  ; 
The    word    "lease"   shall  include  an  agreement  for  a  "Lease;" 

lease : 
The  word  "  month"  shall  mean  calendar  month  :  "Month;" 

The  expression  "  superior  courts"  shall  mean  her  Ma-  "Superior 
jesty's  superior  courts  of  record  at  Westminster  or    ""''"*; 
Dublin,  as  the  case  may  require : 
The  word  "oath"  shall  include  affirmation  in  the  case  "Oath;" 
of  Quakers,  or  other  declaration  lawfully  substituted 
for  an  oath  in  the  case  of  any  other  persons  exempted 
by  law  from  the  necessity  of  taking  an  oath  : 
The  word  "county"  shall  include  any  riding  or  other  "County;" 
like  division  of  a  county,  and  shall  also  include  county 
of  a  city  or  county  of  a  town  : 
The  word  "  sheriff,  "  shall  include  under  sheriff,  or  other  "The  she-  ^ 
legally  competent  deputy;  and  where  any  matter  in  riff;" 
relation  to  any  lands  is  required  to  be  done  by  any 
sheriff,  or  by  any  clerk  of  the  peace,  the  expression 
"the  sheriff,"   or  the  expression   "the  clerk  of  the  •<  The  Clerk 
peace,  "  shall  in  such  case  be  construed  to  mean  the  of  the  ^^ 
sheriff  or  the  clerk  of  the  peace  of  the  county,  city,    **'^*' 
borough,  liberty,   cinque  port,  or  place  where  such 
lands  shall  be  situate ;  and  if  the  lands  in  question, 
being  the  property  of  one  and  the  same  party,  be 
situate  not  wholly  in  one  county,  city,  borough,  liberty, 
cinque  port,  or  place,   the   same  expression  shall  be 
construed  to  mean  the  sheriff  or  clerk  of  the  peace  of 


'  Justices  :' 


"  Two  jus. 
tices;'' 

"  Ownerj" 


'The  bank.* 


Short  title  of 
the  act. 


Form  in 
which  por. 
tions  of  this 
act  may  be 
incorporated 
with  other 
acts. 


Appendix — Statutes. 

any  county,  city,  borough,  liberty,  cinque  port,  or  place 
where  any  part  of  such  lands  shall  be  situate  : 

The  word  "justices  "  shall  mean  justices  of  the  peace 
acting  for  the  county,  city,  liberty,  cinque  port,  or 
place  where  the  matter  requiring  the  cognizance  of 
any  such  justice  shall  arise,  and  who  shall  not  be 
interested  in  the  matter  ;  and  where  such  matter  shall 
arise  in  respect  of  lands  being  the  property  of  one  and 
the  same  party,  situate  not  only  in  any  one  county, 
city,  borough,  liberty,  cinque  port,  or  place,  the  same 
shall  mean  a  justice  acting  for  the  county,  city,  bo- 
rough, liberty,  cinque  port,  or  place  where  any  part  of 
such  lands  shall  be  situate,  and  who  shall  not  be  in- 
terested in  such  matter ;  and  where  any  matter  shall 
be  authorized  or  required  to  be  done  by  two  justices, 
the  expression  "two  justices  "  shall  be  understood  to 
mean  two  justices  assembled  and  acting  together : 

Where  under  the  provisions  of  this  or  the  special  act,  or 
any  act  incorporated  therewith,  any  notice  shall  be 
required  to  be  given  to  the  owner  of  any  lands,  or  where 
any  act  shall  be  authorized  or  required  to  be  done  with 
the  consent  of  any  such  owner,  the  word  "  owner  " 
shall  be  understood  to  mean  any  person  or  corporation 
who,  under  the  provisions  of  this  or  the  special  act, 
would  be  enabled  to  sell  and  convey  lands  to  the  pro- 
moters of  the  undertaking : 

The  expression  "the  bank"  shall  mean  the  Bank  of 
England  where  the  same  shall  relate  to  monies  to  be 
paid  ordepositedin  respect  of  lands  situate  in  England, 
and  shall  mean  the  Bank  of  Ireland  where  the  same 
shall  relate  to  monies  to  be  paid  or  deposited  in  respect 
of  lands  situate  in  Ireland. 

4.  And  be  it  enacted,  that  in  citing  this  act  in  other 
acts  of  parliament,  and  in  legal  instruments,  it  shall  be  suf- 
ficient to  use  the  expression  "  The  Lands  Clauses  Consoli- 
dation Act,  1845." 

5.  And  whereas  it  may  be  convenient  in  some  cases  to 
incorporate  Avith  acts  of  parliament  hereafter  to  be  passed 
some  portion  only  of  the  provisions  of  this  act;  be  it  there- 
fore enacted,  that,  for  the  purpose  of  making  any  such  in- 
corporation, it  shall  be  sufficient  in  any  such  act  to  enact 
that  the  clauses  of  this  act  with  respect  to  the  matter  so 
proposed  to  be  incorporated  (describing  such  matter  as  it  is 
described  in  this  act  in  the  words  introductory  to  the  enact- 
ment with  respect  to  such  matter,)  shall  be  incorporated 
with  such  act,  and  thereupon  all  the  clauses  and  provisions 


8  Vict.  c.  18 — Lands  Clauses.  ciii 

of  this  act  with  respect  to  the  matter  so  incorporated  shall, 
save  so  far  as  they  shall  be  expressly  varied  or  excepted  by 
such  act,  form  part  of  such  act,  and  such  act  shall  be  con- 
strued as  if  the  substance  of  such  clauses  and  provisions 
were  set  forth  therein  with  reference  to  the  matter  to  which 
such  act  shall  relate. 

And  with  respect  to  the  purchase  of  lands  by  agreement,    Purchase 
be  it  enacted  as  follows :  "/  Lands  by 

6.  Subject  to  the  provisions  of  this  and  the  special  act  it  „  ^'^^^'"  • 
shall  be  lawful  for  the  promoters  of  the  undertaking  to  agree  purchase 
with  the  owners  of  any  lands  by  the  special  act  authorized  lands  by 
to  be  taken,  and  which  shall  be  required  for  the  purposes  of  *8''*^"'^"*- 
such  act,  and  with  all  parties  having  any  estate  or  interest 

in  such  lands,  or  by  this  or  the  special  act  enabled  to  sell 
and  convey  the  same,  for  the  absolute  purchase,  for  a  con- 
sideration in  money,  of  any  such  lands,  or  such  parts  thereof 
as  they  shall  think  proper,  and  of  all  estates  and  interests 
in  such  lands  of  what  kind  soever. 

7.  It  shall  be  lawful  for  all  parties,  being  seised,  pos-  Parties  un- 
sessedof,  or  entitled  to  any  such  lands,  or  any  estate  or  in-  "1"  disability 

.  .1         •       ,         11         1  1  1  1      enabled  to 

terest  therem,  to  sell  and  convey  or  release  the  same  to  the  sell  and  con- 
promoters  of  the  undertaking,  and  to  enter  into  all  neces-  vey. 
sary  agreements  for  that  purpose;  and  particularly  it  shall 
be  lawful  for  all  or  any  of  the  following  parties  so  seised, 
possessed,  or  entitled  as  aforesaid  so  to  sell,  convey  or  re- 
lease; (that  is  to  say,)  all  corporations,  tenants  in  tail  or  for 
life,  married  women  seised  in  their  own  right  or  entitled  to 
dower,  guardians,  committees  of  lunatics  and  idiots,  trustees 
or  feoffees  in  trust  for  charitable  or  other  purposes,  executors 
and  administrators,  and  all  parties  for  the  time  being  en- 
titled to  the  receipt  of  the  rents  and  pi-ofits  of  any  such  lands 
in  possession  or  subject  to  any  estate  in  dower,  or  to  any 
lease  for  life,  or  for  lives  and  years,  or  for  years,  or  any  less 
interest;  and  the  power  so  to  sell  and  convey  or  release  as 
aforesaid  may  lawfully  be  exercised  by  all  such  parties,  other 
than  married  women  entitled  to  dower,  or  lessees  for  life,  or 
for  lives  and  years,  or  for  years,  or  for  any  less  interest,  not 
only  on  behalf  of  themselves  and  their  respective  heirs,  ex- 
ecutors, administrators,  and  successors,  but  also  for  and  on 
behalf  of  every  person  entitled  in  reversion,  remainder,  or 
expectancy  after  them,  or  in  defeasance  of  the  estates  of 
such  parties,  and  as  to  such  married  women,  whether  they  be 
of  full  age  or  not,  as  if  they  were  sole  and  of  full  age,  and  as 
to  such  guardians,  on  behalf  of  their  wards,  and  as  to  such 
committees,  on  behalf  of  the  lunatics  and  idiots  of  whom 


civ  Appendix — Statutes. 

they  are  the  committees  respectively,  and  that  to  the  same 
extent  as  such  wives,  wards,  kmatics  and  idiots  respectively 
could  have  exercised  the  same  power  under  the  authority 
of  this  or  the  special  act  if  they  had  respectively  been  under 
no  disability,  and  as  to  such  trustees,  executors,  and  admi- 
nistrators, on  behalf  of  their  cestuique  trusts,  whether  in- 
fants, issue  unborn,  lunatics,  femes  covert,  or  other  per- 
sons, and  that  to  the  same  extent  as  such  cestuique  trusts 
respectively  could  have  exercised  the  same  powers  under  the 
authority  of  this  and  the  special  act  if  they  had  respectively 
been  under  no  disability. 
Parties  iin-         g_  jj^g  power  hereinafter  given  to  enfranchise  copyhold 

der  disability  ,       j  i^  o  •      j  ^     u  •     j 

to  exercise  lands,  as  well  as  every  other  power  required  to  be  exercised 
other  pow-  by  the  lord  of  any  manor  pursuant  to  the  provisions  of  this 
*''^"  or  the  special  act,   or  any  act  incorporated  therewith,   and 

the  power  to  release  lands  from  any  rent,  charge,  or  incum- 
brance, and  to  agree  for  the  apportionment  of  any  such 
rent,  charge,  or  incumbrance,  shall  extend  to  and  may  law- 
fully be  exercised  by  every  party  hereinbefore  enabled  to 
sell  and  convey  or  release  lands  to  the    promoters  of  the 
undertaking. 
Amount  of        9.  The  purchase  money  or  compensation  to  be  paid  for 
compensa-     any  lands  to  be  purchased  or  taken  from  any  party  under 
ofparties'un-  ^^Y  disability  or  incapacity,  and  not  having  power  to  sell  or 
der  disability  convey  such  lands  except  under  the  provisions  ofthisorthe 
'"■'^^fi^h'^^'^'    sp^<^i^l  ^^^>  3"d  the  compensation  to  be  paid  for  any  per- 
valuation,      manent  damage  or  injury  to  any  such  lands,  shall  not,  ex- 
end  paid  into  cept  where  the  same  shall  have  been  determined  by  the 
the  bank.       verdict  of  a  jury,  or  by  arbitration,  or  by  the  valuation  of  a 
surveyor  appointed  by  two  justices  under  the   provision 
hereinafter  contained,  be  less  than  shall  be  determined  by' 
the  valuation  of  two  able  practical  surveyors,  one  of  whom 
shall  be  nominated  by  the  promoters  of  the  undertaking, 
and  the  other  by  the  other  party,  and  if  such  twosurveyors 
cannot  agree  in  the  valuation,  then  by  such  third  surveyor 
as  any  two  justices  shall  upon  application  of  either  party, 
after  notice  to  the  other  party,  for  that  purpose  nominate ; 
and  each  of  such  two  surveyors  if  they  agree,  or  if  not  then 
the  surveyor  nominated  by  the  said  justices,  shall  annex  to 
the  valuation  a  declaration  in  writing,  subscribed  by  them 
or  him,  of  the  correctness  thereof;  and  all  such  purchase 
money  or  compensation  shall  be  deposited  in  the  bank  for 
the  benefit  of  the  parties  interested,  in  manner  hereinafter 
mentioned. 
HTiere  ven-        10.  It  shall  be  lawful  for  any  person  seised  in  fee  of,  or 
dor  abso-       entitled  to  dispose  of  absolutely  for  his  own  benefit,   any 


8  Vict,  c.  18 — Lands  Clauses.  cv 

lands  authorized  to  be  purchased  for  the  purposes  of  the  lutely  en- 
special  act  to  sell  and  convey  such  lands  or  any  part  thereof  tit'ed.  lands 
.      ,      ,  1  ^  jy  ^1  J     i.   1  •         •  -J       J.-         c  i"ay  be  sold 

unto  the  promoters  oi  the  undertakuig,  in  consideration  oi  on  chief 

an  annual  rent-charge  payable  by  the  promoters  of  the  un-  rents, 
dertaking,  but,  except  as  aforesaid,  the  consideration  to  be 
paid  for  the  purcliase  of  any  such  lands,  or  for  any  damage 
done  thereto,  shall  be  in  a  gross  sum. 

11.  The  yearly  rents  reserved  by  any  such  conveyance  Payment  of 
shall  be  charged  on  the  tolls  or  rates,  if  any,  payable  under  ''^"'s  to  be 
the  special  act,  and  shall  be  otherwise  secured  in  such  man-  toiuf^  "" 
ner  as  shall  be  agreed  between  the  parties,  and  shall  be  paid 

by  the  promoters  of  the  undertaking  as  such  rents  become 
payable;  and  if  at  any  time  any  such  rents  be  not  paid 
within  thirty  days  after  they  so  became  payable,  and  after 
demand  thereof  in  writing,  the  person  to  whom  any  such 
rent  shall  be  payable  may  either  recover  the  same  from  the 
promoters  of  the  undertaking,  with  costs  of  suit,  by  action 
of  debt  in  any  of  the  superior  courts,  or  it  shall  be  lawful 
for  him  to  levy  the  same  by  distress  of  the  goods  and  chat- 
tels of  the  promoters  of  the  undertaking. 

12.  In  case  the  promoters  of  the  undertaking  shall  be  Power  to 
empowered  by  the  special  act  to  purchase  lands  for  extra-  purchase 
ordinary  purposes,  it  shall  be  lawful  for  all  parties   who,  nu'ireVfor 
under  the  provisions  hereinbefore  contained,  would  be  ena-  additional 
bled  to  sell  and  convey  lands,  to  sell  and  convey  the  lands  ^.ccommoda- 
so  authorized  to  lie  purchased  for  extraordinary  purposes. 

13.  It  shall  be  lawful  for  the  promoters  of  the  under-  Authority  to 
taking  to  sell  the  lands  which  they  shall  have  so  acquired  '*'^"  "'"^  •■«- 
for  extraordinary  purposes,  or  any  part  thereof,  in  such  ^^ll^  fa^nds. 
manner  and  for  such  considerations,  and  to  such  persons, 

as  the  promoters  of  the  undertaking  may  think  fit,  and  again 
to  purchase  other  lands  for  the  like  purposes,  and  afterwards 
sell  the  same,  and  so  from  time  to  time;  but  the  total 
quantity  of  land  to  be  held  at  any  one  time  by  the  pro- 
moters of  the  undertaking,  for  the  purposes  aforesaid,  shall 
not  exceed  the  purscribed  quantity. 

14.  The  promoters  of  the  undertaking  shall  not,  by  virtue  Restraint  on 
of  the  power  to  purchase  land  for  extraordinary  purposes,  purchase 
purchase  more  than  the  prescribed  quantity  from  any  party  c^°i^ed"pe'r-' 
under  legal  disability,  or  who  would  not  be  able  to  sell  and  sons, 
convey  such  lands  except  under  the  powers  of  this  and  the 

special  act ;  and  if  tlie  promoters  of  the  undertaking  pur- 
chase tlie  said  quantity  of  land  from  any  party  under  such 
legal  disability,  and  afterwards  sell  the  whole  or  any  part 
of  the  land  so  purchased,  it  shall  not  be  lawful  for  any  party 
being  under  legal  disability  to  sell  to  the  promoters  of  the 
E  E  5 


cvi  Appendix-^Statutes. 

undertaking  any  other  lands  in  lieu  of  the  land  so  sold  or 

disposed  of  by  them. 

Municipal  15.  Nothing  in  this  or  the  special  act  contained  shall 

nouo'^seu"*  enable  any  municipal  corporation  to  sell  for  the  purposes  of 

without  the   the  special  act,  without  the  approbation  of  the  commis- 

"f  th°'t^''°°  sioners  of  her  Majesty's  treasury  of  the  united  kingdom  of 

sury.        "    Great  Britain  and  Ireland,  or  any  three  of  them,  any  lands 

which  they  could  not  have  sold  without  such  approbation 

before  the  passing  of  the  special  act,  other  than  such  lands 

as  the  company  are  by  the  powers  of  this  or  the  special  act 

empowered  to  purchase  or  take  compulsorily.(a) 

Purchase         And  with  respect  to  the  purchase  and  taking  of  lands 
otherwise    otherwise  than  by  agreement,  be  it  enacted  as  follows : 
than  by         16.  Where  the  undertaking  is  intended  to  be  carried 
Agreement.   JjjJq  effg^t  by  means  of  a  capital  to  be  subscribed  by  the 
Capital  to  be  •^    ,  ,         i  •   '^       i  i     i        /.    i  -i.  ^ 

subscribed     promoters  ot  the  undertakmg,  the  whole  ot  the  capital  or 
before  com-    estimated  sum  for  defraying  the  expenses  of  the  undertaking 
povve'rJof      shall  besubscribed  undercontractbindingthepartiesthereto, 
purchase  put  their  heirs,  executors,  and  administrators,  for  the  payment 
in  force.        ^f  jj^g  several  sums  by  them  respectively  subscribed,  before 
it  shall  be  lawful  to  put  in  force  any  of  the  powers  of  this  or 
the  special  act,  or  any  act  incorporated  therewith,  in  relation 
to  the  compulsory  taking  of  land  for  the  purposes  of  the 
undertaking. 
A  certificate      17.  A  certificate  imder  the  hands  of  two  justices,  certi- 
ticerto  be'     fy'"?^  ^^^^  '•'^^  whole  of  the  prescribed  sum  has  been  sub- 
evidence        scribed,  shall  be  sufficient  evidence  thereof;  and  on  the  ap- 
thatthe  cap.  plication  of  the  promoters  of  the  undertaking,  and  the  pro- 
subscribedi    duction  of  such  evidence  as  such  justices  think  proper  and 
sufficient,  such  justices  shall  grant  such  certificate  accord- 
ingly. 
Notice  of  in.      18.  When  the  promoters  of  the  undertaking  shall  require 
t^"*'""  'o      to  purchase  or  take  any  of  the  land  which  by  this  or  the 
special  act,  or  any  act  incorporated  therewith,  they  are 
authorized  to  purchase  or  take,  they  shall  give  notice  thereof 
to  all  the  parties  interested  in  such  lands,  or  to  the  parties 
enabled  by  this  act  to  sell  and  convey  or  release  the  same, 
or  such  of  the  said  parties  as  shall,  after  diligent  inquirj', 
be  known  to  the  promoters  of  the  undertaking,  and  by  such 
notice  shall  demand  from  such  parties   the  particulars  of 
their  estate  and  interest  in  such  lands,  and  of  the  claims 

(a)  As  to  powers  of  alieniation  enjoyed  by  municipal  cor- 
porations and  the  limitations  thereon,  see  5  &  6  W.  IV.  c.  76, 
S8.  94—96, 


8  Vict.  C.  18 — Lands  Clauses.  cvii 

Made  by  them  in  respect  thereof;  and  every  such  notice 
shall  state  the  particulars  of  the  land  so  required,  and  that 
the  promoters  of  the  undertaking  are  willing  to  treat  for  the 
purchase  thereof,  and  as  to  the  compensation  to  be  made  to 
all  parties  for  the  damage  that  may  be  sustained  by  them 
by  reason  of  the  execution  of  the  works.  (6) 

19.  All  notices  required  to  be  served  by  the  promoters  of  Service  of 
the  undertaking  upon  the  parties  interested  in  or  entitled  to  owners  and 
sell  any  such  lands  shall  either  be  served  personally  on  such  occupiers  of 
parties  or  left  at  their  usual  place  of  abode,  if  any  such  can  '^"'*^- 
after  diligent  inquiry  be  found,  and  in  case  any  such  parties 

shall  be  absent  from  the  United  Kingdom,  or  cannot  be 
found  after  diligent  inquiry,  shall  also  be  left  with  the  oc- 
cupier of  such  lands,  or,  if  there  be  no  such  occupier,  shall 
be  affixed  upon  some  conspicuous  part  of  such  lands. 

20.  If  any  such  party  be  a  corporation  aggregate  such  Service  of 
notice  shall  be  left  at  the  principal  office  of  business   of  "orp^a'thin 
such  corporation,  or,  if  no  such  office  can  after  diligent  in-  aggregate. 
quiry  be  found,  shall  be  served  on  some  principal  member, 

if  any,  of  such  corporation,  and  such  notice  shall  also  be 
left  with  the  occupier  of  such  lands,  or,  if  there  be  no  such 
occupier,  shall  be  affixed  upon  some  conspicuous  part  of 
such  lands. 

21.  If,  for  twenty-one  days  after  the  service  of  such  no-  If  parties 
tice,  any  such  party  shall  fail  to  state  the  particulars  of  his  o^'\n°case '^f 
claim  in  respect  of  any  such  land,  or  to  treat  with  the  pro-  dispute, 
moters  of  the  undertaking  in  respect  thereof,  or  if  such  question  to 
party  and  the  promoters  of  the  undertaking  shall  not  agree  afj^j  nj^n. 
as  to  the  amount  of  the  compensation  to  be  paid  by  the  pro-  tioned. 
moters  of  the  undertaking  for  the  interest  in  such  lands  be- 
longing to  such  party,  or  which  he  is  by  this  or  the  special 

act  enabled  to  sell,  or  for  any  damage  that  may  be  sustained 
by  him  by  reason  of  the  execution  of  the  works,  the  amount 
of  such  compensation  shall  be  settled  in  the  manner  herein- 
after provided  for  settling  cases  of  disputed  compensa- 
tion.(c) 

(6)  As  to  effect  of  notice  generally,  and  as  to  its  requisites 
under  analogous  provisions  of  particular  acts,  see  Treatise, 
pp.  198,  199. 

(c)  Looking  at  the  provisions  of  the  present  act  for  settling 
cases  of  disputed  compensation,  it  would  seem  that  in  cases 
where  recourse  is  had  to  the  verdict  of  a  sheriff's  jury,  the  in- 
quisition should  on  the  face  of  it  state  such  facts  as  to  exclude 
the  two  other  metliods  appointed  by  the  act  for  the  purpose  in 
question. 


cviii  Appendix — Statuteg. 

Disputes  as  22.  If  no  agreement  be  come  to  between  the  promotefsf 
sation"where  ^^  ^'^^  vmdertaking  and  the  owners  of  or  parties  by  this  act 
the  amount  enabled  to  sell  and  convey  or  release  any  lands  taken  or 
claimed  does  required  for  or  injuriously  aifected  by  the  execution  of  the 
50;.  to  be  undertaking,  or  any  interest  in  such  lands,  as  to  the  value 
settled  by  of  such  lands  or  of  any  interest  therein,  or  as  to  the  com- 
two  justices,  pensation  to  be  made  in  respect  thereof,  and  if  in  any  such 
case  the  compensation  claimed  shall  not  exceed  fifty  pounds, 
the  same  shall  be  settled  by  two  justices,  (d) 
Compensa-  23.  If  the  Compensation  claimed  or  offered  in  any  such 
ine^sortrbe  ^^^^  ^^^^''  exceed  fifty  pounds,  and  if  tlie  party  claiming 
settled  by  Compensation  desire  to  have  the  same  settled  by  arbitration, 
arbitration     and  signify  such  desire  by  notice  in  writing  to  the  promoters 

or  iurv  a.t  the  .  .  ^  t 

option  of  the  ^^  the  undertaking,  before  they  have  issued  their  warrant  to 
party  claim-  the  sheriff  to  summon  a  jury  in  respect  of  such  lands,  under 
s"fi  ^^™P*"'  the  provisions  hereinafter  contained,  stating  in  such  notice 
the  nature  of  the  interest  in  respect  of  which  such  party 
c'aims  compensation,  and  the  amount  of  the  compensation 
so  claimed,    the  same  shall  be  so  settled  accordingly;    but 
unless  the  party  claiming  compensation  shall  as  aforesaid 
signify  his  desire  to  have  the  question  of  such  compensation 
settled  by  arbitration,  or  if  when  the  matter  shall  have  been 
refei-red  to  arbitration  the  arbitrators  or  their  umpire  shall 
for  three  months  have  failed  to  make  their  or  his  award,  or 
if  no  final  award  shall  be  made,   the  question  of  such  com- 
pensation shall  be  settled  by  the  verdictof  a  jury,  as  herein^ 
after  provided  (d) 
Method  of         24.  It  shall  be  lawful  for  anyjustice,  upon  the  application 
proceeding     of  either  party  with  respect  to  any  question  of  disputed 

for   settling  f-        i       »L-  S  •   i        .  ^  ■ 

disputes  as  Compensation  by  this  or  the  special  act,  or  any  act  mcorpo- 
to  compen-  rated  -therewith,  authorized  to  be  settled  by  two  justices,  to 
fj'*t°"  ,'^*  summon  the  other  party  to  appear  before  two  justices,  at  a 
time  and  place  to  be  named  in  the  summons,  and  upon  the 
appearance  of  such  parties,  or  in  the  absenceof  any  of  them, 
upon  proof  of  due  service  of  the  summons,  it  shall  be  lawful 
for  such  justices  to  hear  and  determine  such  ([uestion,  and 
for  that  purpose  to  examine  such  parties  or  any  of  them, 
and  their  witne.ises,  upon  oath,  and  the  costs  of  every  such 
inquiry  shall  be  in  the  discretion  of  such  justices,  and  they 
shall  settle  the  amount  thereof. 

(f/)  Quaere  whether  this  and  the  subsequent  clause  apply  to 
cases  where,  on  the  receipt  of  the  notice,  the  opposite  party  al- 
together lies  bye  and  takes  no  notice  of  the  company's  proceed- 
ing. In  such  cases  therefore,  Scmble  it  would  be  competent 
for  the  company  to  issue  their  warrant  for  a  jury. 


8  Vict.  c.  18 — Lands  Clauses.  cix 

25.  When  any  question  of  disputed  compensation  by  this  Appoint- 
or the  special  act,  or  any  act  incorporated  therewith,  autho-  bitraior  ^'^ 
rized  or  required  to  be  settled  by  arbitration,   shall   have  when  ques- 
arisen,  then,  unless  both  parties  shall  concur  in  the  appoint-  ''°"s  "^  to 
ment  of  a  single  arbitrator,  each  party,   on  the  request  of  mined  by 
the  other  party,  shall  nominate  and  appoint  an  arbitrator,  arbitration. 
to  whom  such  disputes  shall  be  referred ;    and   every  ap- 
pointment of  an  arbitrator  shall  be  made  on  the  part  of  the 
promoters  of  the  undertaking  under  the  hands  of  the  said 
promoters  or  any  two  of  them,  or  of  their  secretary  or  clerk, 
and  on  the  part  of  any  other  party  under  the  hand  of  such 
party,  or  if  such  party  be  a  corporation  aggregate,  under 
the  common  seal  of  such  corporation;    and  such  appoint- 
mentshall  be  delivered  to  the  arbitrator,  and  shall  be  deemed 
a  submission  to  arbitration  on  the  part  of  the  party  by  whom 
the  same  shall  be  made;  and  after  any  such  appointment 
shall  have  been  made  neither  party  shall  have  power  to 
revoke  the  same  without  the  consent  of  the  other,  nor  shall 
the  death  of  either  party  operate  as  a  revocation;  and  if  for 
the  space  of  fourteen  days  after  any  such  dispute  shall  have 
arisen,  and  after  a  request  in  writing,  in  which  shall  be 
stated  the  matter  so  required  to  be  referred  to  arbitration, 
shall  have  been  served  by  the  one  party  on  the  other  party 
to  appoint  an  arbitrator,  such  last-mentioned  party  fail  to 
appoint  such  arbitrator,  then  upon  such  failure  the  party 
making  the  request,  and  having  himself  appointed  an  arbi- 
trator, may  appoint  such  arbitrator  to  act  on  behalf  of  both 
parties,  and  such  arbitrator  may  proceed  to  hear  and  deter- 
mine the  matters  which  shall  be  in  dispute,   and  in  such 
case  the  award  or  determination  of  such  single  arbitrator 
shall  be  final. 

26.  If,  before  the  matters  so  referred  shall  be  determined.  Vacancy  uf 
any  arbitrator  appointed  by  either  party  die,  or  become  in-  ^g'^j^  ^'°/^  d" 
capable,  the  party  by  whom  such  arbitrator  was  appointed 

may  nominate  and  appoint  in  writing  some  other  person  to 
act  in  his  place,  and  if,  for  the  space  of  seven  days  after  no- 
tice in  writing  from  the  other  party  for  that  purpose,  he  fail 
to  do  so,  the  remaining  or  other  arbitrator  may  proceed  ex 
parte;  and  every  arbitrator  so  to  be  substituted  as  aforesaid 
shall  have  the  same  powers  and  authorities  as  were  vested 
in  the  former  arbitrator  at  the  time  of  such  his  death  or 
disability  as  aforesaid. 

27.  Where  more  than  one  arbitrator  shall  have  been  ap-  Ajjpoint- 
pointed  sucli  arbitrators  shall,  before  they  enter  upon  the  "]^"'  °^  """* 
matters  referred  to  them,  nominate  and  appoint,  by  writing 


ex 


Board  of 
trade  em- 
powered to 
appoint  an 
umpire  on 
neglect  of 
the  arbitrai- 
tors, in  case 
of  railway 
companies. 


In  case  of 
deaih  of 
single  arbi- 
trator the 
matter  to  be- 
gin de  novo. 


If  either  ar- 
bitrator re- 
fuse to  act 
the  other  to 
proceed  ex 
parte. 


Ifarbitrators 
fail  to  make 
their  award 
within 
twenty  one 
days  the 
matter  to  go 
to  the  um- 
pire. 


Power  of 
arbitrators 
to  call  for 
books,  &c. 


Arbitrator  or 
umpire  to 


Appendix — Statutes. 

under  their  hands,  an  umpire  to  decide  on  any  such  matters 
on  which  they  shall  differ,  or  which  shall  be  referred  to  him 
under  the  pi'ovisions  of  this  or  the  special  act,  and  if  such 
umpire  shall  die,  or  become  incapable  to  act,  they  shall 
forthwith  after  such  death  or  incapacity  appoint  another 
umpire  in  his  place,  and  the  decision  of  every  such  umpire 
on  the  matters  so  referred  to  him  shall  be  final. 

2R,  If  in  either  of  the  cases  aforesaid  the  said  arbitrators 
shall  refuse,  or  shall,  for  seven  days  after  request  of  either 
party  to  such  arbitration,  neglect  to  appoint  an  umpire,  the 
board  of  trade,  in  any  case  in  which  a  railway  company 
shall  be  one  party  to  the  arbitration,  and  two  justices  in  any 
other  case,  shall,  on  the  application  of  either  party  to  such 
arbitration,  appoint  an  umpire,  and  the  decision  of  such 
umpire  on  the  matters  on  which  the  arbitrators  shall  differ, 
or  which  shall  be  referred  to  him  under  this  or  the  special 
act,  shall  be  final. 

29.  If,  when  a  single  arbitrator  shall  have  been  appointed, 
such  arbitrator  shall  die  or  become  incapable  to  act  before 
he  shall  have  made  his  award,  the  matters  referred  to  him 
shall  be  determined  by  arbitration  under  the  provisions  of 
this  or  the  special  act  in  the  same  manner  as  if  such  arbi- 
trator had  not  been  appointed. 

30.  If,  where  more  than  one  arbitrator  shall  have  been 
appointed,  either  of  the  arbitrators  refuse  or  for  seven  days 
neglect  to  act  the  other  arbitrator  may  proceed  ex  parte, 
and  the  decision  of  such  other  arbitrator  shall  be  as  effectual 
as  if  he  had  been  the  single  arbitrator  appointed  by  both 
parties. 

31.  If  where  more  than  one  arbitrator  shall  have  been 
appointed,  and  where  neither  of  them  shall  refuse  or  neg- 
lect to  act  as  aforesaid,  such  arbitrators  shall  fail  to  make 
their  award  within  twenty-one  days  after  the  day  on  which 
the  last  of  such  arbitrators  shall  have  been  appointed,  or 
within  such  extended  time  (if  any)  as  shall  have  been  ap- 
pointed for  that  purpose  by  both  such  arbitrators  under 
their  hands,  the  matters  referred  to  them  sliall  be  deter- 
mined by  the  umpire  to  be  appointed  as  aforesaid. 

32.  The  said  arbitrators  or  their  umpire  may  call  for 
the  production  of  any  documents  in  the  possession  or  power 
of  either  party  which  they  or  he  may  think  necessary  for 
determining  the  question  in  dispute,  and  may  examine  the 
parties  or  their  witnesses  on  oath,  and  administer  the  oaths 
necessary  for  that  purpose. 

33.  Before  any  arbitrator  or  umpire  shall  enter  into  the 
consideration  of  any  matters  referred  to  him,  he  shall  in  the 


8  Vict.  c.  18 — Lands  Clauses.  cxi 

presence  of  a  justice  make  and  subscribe  the  following  de-  "^J^^y^^*" 
claration  ;  that  is  to  say. 
'  I,  A.  B.  do  solemnly  and  sincerely  declare,  that  I  will 
'  faithfully  and  honestly,  and  to  the  best  of  my  skill 
'  and  ability  hear  and  determine  the  matters  referred 
'  to  me  under  the  provisions  of  the  act  [naming  the 
'  special  act].  A.  B. 

'  Made  and  subscribed  in  the  presence  of 
And  such  declaration  shall  be  annexed  to  the  award  when 
made ;    and  if  any  arbitrator  or  umpire  having  made  such 
declaration  shall  wilfully  act  contrary  thereto  he  shall  be 
guilty  of  a  misdemeanor. 

34.  All  the  costs  of  any  such  arbitration,    and  incident  Costs  of  arbi- 
thereto,    to  be  settled  by  the  arbitrators,   shall  be  borne  by  ll''^°^Ji°Z 
the  promoters  of  the  undertaking,    unless  the  arbitrators 

shall  award  the  same  or  a  less  sum  than  shall  have  been 
olFered  by  the  promoters  of  the  undertaking,  in  which  case 
each  party  shall  bear  his  own  costs  incident  to  the  arbitra- 
tion, and  the  costs  of  the  arbitrators  shall  be  borne  by  the 
parties  in  equal  proportions. 

35.  The  arbitrators  shall  deliver  their  award  in  writing  Award  to  he 
to  the  promoters  of  the  undertaking,  and  the  said  promoters  deiiyered  to 
shall  retain  the  same,  and  shall  forthwith,  on  demand,  at  motereofthe 
their  own  expence,  fui'nish  a  copy  thereof  to  the  other  undertaking, 
party  to  the  arbitration,  and  shall  at  all  times,  on  demand, 
produce  the  said  award,  and  allow  the  same  to  be  inspected 

or  examined  by  such  party  or  any  person  appointed  by  him 
for  that  purpose. 

36.  The  submission  to  any  such  arbitration  may  be  made  submis?ion 
a  rule  of  any  of  the  superior  courts,  on  the  application  of  may  be  made 

VI.         ci.  f  a  rule  of 

either  ot  the  parties.  court. 

37.  No  award  made  with  respect  to  any  question  referred  Award  not 
to  arbitration  under  the  provisions  of  this  or  the  special  ^°"^  through 
act  shall  be  set  aside  for  irregularity  or  error  in  matter  form. 

of  form. 

38.  Before  the  promoters  of  the  undertaking  shall  issue  Promoters  of 
their  warrant  for  summoning  a  jury  for  settling  any  case  of  t^i^/'n^^"- 
disputed  compensation  they  shall  give  not  less  than  ten  days  give  notice 
notice  to  the  other  party  of  their  intention  to  cause  such  before  sum. 
jury  to  be  summoned,  and  in  such  notice  the  promoters  of  j™"".'"^  ** 
the  undertaking  shall  state  what  sum  of  money  they  are 

willing  to  give  for  the  interest  in  such  lands  sought  to  be 
purchased  by  them  from  such  party,  and  for  the  damage 
to  be  sustained  by  him  by  the  execution  of  such  works. 

39.  In  every  case  in  which  any  such  question  of  dis-  Warrant  for 
puted  compensation  shall  be  required  to  be  determined  by  jui^'to'be"^ 


cxii  Appendix — Statutes. 

th'^'^h^^^'ff'"  *''^  verdict  of  a  jury,  the  promoters  of  the  undertaking 
shall  issue  their  warrant  to  the  sheriff,  requiring  him  to 
summon  a  jury  for  that  purpose,  and  such  warrant  shall  be 
under  the  common  seal  of  the  promoters  of  the  under- 
taking if  they  be  a  corporation,  or  if  they  be  not  a  corpo- 
ration under  the  hands  and  seals  of  such  promoters  or  any 
two  of  them;  and  if  such  sheriff  be  interested  in  the  matter 
in  dispute  such  application  shall  be  made  to  some  coroner 
of  the  county  in  which  the  lands  in  question,  or  some  part 
thereof,  shall  be  situate,  and  if  all  the  coroners  of  such 
county  be  so  interested,  such  application  may  be  made  to 
some  person  having  filled  the  office  of  sheriff  or  coroner  in 
such  county,  and  who  shall  be  then  living  there,  and  who 
shall  not  be  interested  in  the  matter  in  dispute;  and  with 
respect  to  the  persons  last  mentioned  preference  shall  be 
given  to  one  who  shall  have  most  recently  served  either 
of  the  said  offices ;  and  every  ex-sheriff,  coroner,  or  ex- 
coroner  shall  have  power,  if  he  think  fit,  to  appoint  a  de- 
puty or  assessor  ( /'). 
Provisions  40.  Throughout  the  enactments  contained  in  this  act  re- 

appiicabieto  lating  to  the  reference  to  a  jury,  where  the  term  "  sheriff" 
appVy  to°       '•'^  used,  the  provisions  applicable  thereto  shall  be  held  to 
coroner.        apply  to  every  coroner  or  other  person  lawfully  acting  in 
his  place;   and  in  every  case  in  which  any  such  warrant 
shall  have  been  directed  to  any  other  person  than  the  sheriff, 
such  sheriff  shall,  immediately  on  receiving  notice  of  the 
delivery  of  the  warrant,   deliver  over,  on  application  for 
that  purpose,  to  the  person  to  whom  the  same  shall  have 
been  directed,  or  to  any  person  appointed  by  him  to  receive 
the  same,  the  jurors  book  and  special  jurors  list  belonging 
to  the  coiuity  where  the  lands  in  question  shall  be  situate. 
Jury  to  be  4],  Upon  the  receipt  of  such  warrant  the   sheriff  shall 

Nummoned.  .  c  ..  ^     v  ■    j-a-  i.  i    1 

summon  a  jury  of  twenty-tour  indirterent  persons,   duly 

qualified  to  act  as  common  jurymen  in  the  superior  courts, 
to  meet  at  a  convenient  time  and  place  to  be  apjiointedby 
him  for  that  purpose,  such  time  not  being  less  than  four- 
teen nor  more  tiian  twenty-one  days  after  the  receipt  of 
such  warrant,  and  such  place  not  being  more  than  eight 
miles  distant  from  the  lands  in  question,  imless  by  consent 

(y)  As  to  the  effect  of  analogous  clauses  in  particular  rail- 
way acts,  and  more  particularly  as  to  the  consequences  of  mis- 
directing the  warrant,  see  Treatise,  pp.  '202,203;  and  Corrigall  v. 
London  and  Biackwall  Railway  Company ,  5  M.  *  G.  219  ;  S.  C. 
21  Law  Journ.  C.  P.  216.  See  also,  as  to  power  of  appointing 
deputy,  Treatise,  p.  202. 


8  Vict.c.  18 — Lands  Clauses.  cxiii 

of  the  parties  interested,  and  he  shall  forthwith  give  notice 
to  the  promoters  of  the  works  of  the  time  and  place  so 
appointed  by  him. 

42.  Out  of  the  jurors  appearing  upon  such  summons  a  Jury  to  be 
jury  of  twelve  persons  shall  be  drawn  by  the  sheriff,    in  impanelled, 
such  manner  as  juries  for  trials  of  issues  joined  in  the   su- 
perior courts  are  by  law  required  to  be  drawn,    and  if  a 
sufficient  number  of  jurymen  do  not  appear  in  obedience 

to  such  summons  the  sheriff  shall  return  other  indifferent 
men,  duly  qualified  as  aforesaid,  of  the  bystanders,  or  others 
that  can  speedily  be  procured,  to  make  up  the  jury  to  the 
number  aforesaid ;  and  all  parties  concerned  may  iiave 
their  lawful  challenges,  against  any  of  the  jurymen,  but  no 
such  party  shall  challenge  the  array. 

43.  The  sheriff  shall  preside  on  the  said  inquiry,  and  the  Sheriff  to 
party  claimingcompensation  shall  be  deemed  the(g)  plaintiff,  ngg|e'^*^"|,e" 
and  shall  have  all  such  rights  and  privileges  as  the  plaintiff  summoned, 
is  entitled  to  in  the  trial  of  actions  at  law ;  and  if  either 

party  so  request  in  writing,  the  sheriff  shall  summon  before 
him  any  person  considered  necessary  to  be  examined  as  a 
witness  touching  the  matters  in  question,  and  on  the  like 
request  the  sheriff  shall  order  the  jury,  or  any  six  or  more 
of  them,  to  view  the  place  or  matter  in  controversy,  in  like 
manner  as  views  may  be  had  in  the  trial  of  actions  in  the 
superior  courts. 

44.  If  the  sheriff  make   default  in  any  of  the  matters  Penalty  on 
hereinbefore  required  to  be  done  by  him  in  relation  to  any  sheriff  and 
such  trial  or  inquiry,  he  shall  forfeit  fifty  pounds  for  every  default, 
such  offence,  and  such  penalty  shall  be  recoverable  by  the 
promoters  of  the  undertaking  by  action  in  any  of  tlie  su- 
perior courts ;  and  if  any  person  summoned  and  returned 

upon  any  jury  under  this  or  the  special  act,  whether  com- 
mon or  special,  do  not  appear,  or  if  appearing,  he  refuse 
to  make  oath,  or  in  any  other  manner  unlawfully  neglect 
his  duty,  he  shall,  unless  he  show  reasonable  excuse  to  the 
satisfaction  of  the  sheriff,  forfeit  a  sum  not  exceeding  ten 
pounds ;  and  every  such  penalty  payable  by  a  sheriff  or 
juryman  shall  be  applied  in  satisfaction  of  the  costs  of  the 
inquiry,  so  far  as  the  same  will  extend  ;  and,  in  addition  to 
the  penalty  hereby  imposed,  every  such  juryman  shall  be 
subject  to  the  same  regulations,  pains,  and  penalties  as  if 
such  jury  had  been  returned  for  the  trial  of  an  issue  joined 
in  any  of  the  superior  courts. 

43.  If  any  person  duly  summoned  to  give  evidence  upon  Penalty  on 

(g)  As  to  effect  of  this  provision,  see  Treat,  ante,  p.  227. 


witnesses 
making  de- 
fault. 


Notice  of 
inquiry. 


If  the  party 
mahe  default 
the  inquiry 
not  to  pro- 
ceed. 


Jury  to  be 
sworn. 


Sums  to  be 
paid  for  pur- 
chase  of 
lands  and  for 
damage,  to 
be  assessed 
separately. 


Verdict  and 
iudgment  to 
be  recorded, 


Appendix — Statutes . 

any  such  inquir}',  and  to  whom  a  tender  of  his  reasonahle 
expenses  shall  have  been  made,  fail  to  appear  at  the  time 
and  place  specified  in  the  summons  without  suflBcient  cause, 
or  if  any  person,  whether  summoned  or  not,  who  shall 
appear  as  a  witness,  refuse  to  be  examined  on  oath  touching 
the  subject  matter  in  question,  every  person  so  offending 
shall  forfeit  to  the  party  aggrieved  a  sum  not  exceeding  ten 
pounds. 

46.  Not  less  than  ten  days  notice  of  the  time  and  place 
of  the  inquiry  shall  be  given  in  writing  by  the  promoters  of 
the  undertaking  to  the  other  party, 

47.  If  the  party  claiming  compensation  shall  not  ap- 
pear at  the  time  appointed  for  the  inquiry  such  inquiry  shall 
not  be  further  proceeded  in,  but  the  compensation  to  be 
paid  shall  be  such  as  shall  be  ascertained  by  a  surveyor 
appointed  by  two  justices  in  manner  hereinafter  provided. 

48.  Before  the  jury  proceed  to  inquire  of  and  assess  the 
compensation  or  damage  in  respect  of  which  their  verdict  is 
to  be  given  they  shall  make  oath  that  they  will  truly  and 
faithfully  inquire  of  and  assess  such  compensation  or  da- 
mage, and  the  sheriff  shall  administer  such  oaths,  as  well  as 
the  oaths  of  all  persons  called  upon  to  give  evidence. 

49.  Where  such  inquiry  shall  relate  to  the  value  of  lands 
to  be  purchased,  and  also  to  compensation  claimed  for  injury 
done  or  to  be  done  to  the  lands  held  therewith,  the  jury 
shall  deliver  their  verdict  separately  for  the  sum  of  money 
to  be  paid  for  the  purchase  of  the  lands  required  for  the 
works,  or  of  any  interest  therein  belonging  to  the  party 
with  whom  the  question  of  disputed  compensation  shall 
have  arisen,  or  which,  under  the  provisions  herein-con- 
tained, he  is  enabled  to  sell  or  convey,  and  for  the  sum  of 
money  to  be  paid  by  way  of  compensation  for  the  damage, 
if  any,  to  be  sustained  by  the  owner  of  the  lands  by  reason 
of  the  severing  of  the  lands  taken  from  the  other  lands  of 
such  owner,  or  otherwise  injuriously  affecting  such  lands  by 
the  exercise  of  the  powers  of  this  or  the  special  act,  or  any 
act  incorporated  therewith.  (A) 

50.  The  sheriff  before  whom  such  inquiry  shall  be  held 
shall  give  judgment  for  the  purchase  money  or  compensa- 
tion assessed  by  such  jury,  and  the  verdict  and  judgment 
shall  be  signed  by  the  sheriff,  and  being  so  signed  shall  be 


(A)  Semble,  this  clause  is  to  be  construed  as  directory 
rather  than  as  imperative,  and  therefore  an  inquisition  is  not 
necessarily  void  because  its  requisites  are  not  complied  with, 
see  Treatise,  pp.  203,  204. 


8  Vict.  c.  18 — Lands  Clauses.  cxv 

kept  by  the  clerk  of  the  peace  among  the  records  of  the 
general  or  quarter  sessions  of  the  county  in  which  the  lands 
or  any  part  thereof  shall  be  situate  in  respect  of  which  such 
purchase  money  or  compensation  shall  have  been  awarded; 
and  such  verdicts  and  judgments  shall  be  deemed  records, 
and  the  same  or  true  copies  thei'eof  shall  be  good  evidence 
in  all  courts  and  elsewhere,  and  all  persons  may  inspect  the 
said  verdicts  and  judgments,  and  may  have  copies  thereof 
or  extracts  therefrom,  on  paying  for  each  inspection  thereof 
one  shilling,  and  for  every  one  hundred  words  copied  or 
extracted  therefrom  sixpence,  which  copies  or  extracts  the 
clerk  of  the  peace  is  hereby  required  to  make  out,  and  to 
sign  and  certify  the  same  to  be  true  copies,  (i) 

51.  On  every  such  inquiry  before  a  jury,  where  the  ver-  costs  of  the 
diet  of  the  jury  shall  be  given  for  a  greater  sum  than  the  inquiry  how 
sum  previously  offered  by  the  promoters  of  the  undertaking,  ^°^^  borne. 
all  the  costs  of  such  inquiry  shall  be  borne  by  the  promoters 

of  the  undertaking ;  but  if  the  verdict  of  the  jury  be  given 
for  the  same  or  a  less  sum  than  the  sum  previously  offered 
by  the  promoters  of  the  undertaking  or  if  the  owner  of  the 
lands  shall  have  failed  to  appear  at  the  time  and  place  ap- 
pointed for  the  inquiry,  having  received  due  notice  thereof, 
one-half  of  the  costs  of  summoning,  impanelling,  and  re- 
turning the  jury,  and  of  taking  the  inquiry  and  recording 
the  verdict  and  judgment  thereon,  in  case  such  verdict  shall 
be  taken,  shall  be  defrayed  by  the  owner  of  the  lands,  and 
the  other  half  by  the  promoters  of  the  undertaking,  and 
each  party  shall  bear  his  own  costs,  other  than  as  aforesaid, 
incident  to  such  inquiry,  (k) 

52.  The  costs  of  any  such  inquiry  shall,  in  case  of  dif-  ParticularH 
ference,  be  settled  by  one  of  the  masters  of  the  Court  of  "'  ^^^  '=""'*• 
Queen's  Bench  of  England  or  Ireland,  according  as  the 

lands  are  situate,  on  the  application  of  either  party,  and 
such  costs  shall  include  all  reasonable  costs,  charges,  and 
expenses  incurred  in  summoning,  impanelling,  and  return- 
ing the  jury,  taking  the  inquiry,  the  attendance  of  witnesses, 
the  employment  of  counsel  and  attornies,  recording  the 
verdict  and  judgment  thereon,  and  otherwise  incident  to 
such  inquiry.  (/) 

(i)  As  to  the  effect  of  similar  clause  in  prior  acts,  see  Trea- 
tise, p.  206,  and  p.  219. 

(ic)  As  to  costs  of  inquiry  under  prior  acts,  see  Treat,  ante, 
pp.  226,  227. 

(I)  As  to  the  operation  of  the  provisions  of  particular  acts 
on  this  subject,  see  Treatise,  pp.  227,  228. 


cxvi  Appendix — Statutes. 

Payment  of  53,  jf  any  such  costs  shall  be  payable  by  the  promoters 
of  the  undertaking,  and  if  within  seven  days  after  demand 
such  costs  be  not  paid  to  the  party  entitled  to  receive  the 
same,  they  shall  be  recoverable  by  distress,  and  on  applica- 
tion to  any  justice  he  shall  issue  his  warrant  accordingly ; 
and  if  any  such  costs  shall  be  payable  by  the  owner  of  the 
lands  or  of  any  interest  therein,  the  same  may  be  deducted 
and  retained  by  the  promoters  of  the  undertaking,  out  of 
any  money  awarded  by  the  jury  to  such  owner,  or  deter- 
mined by  the  valuation  of  a  surveyor  under  the  pro\'ision 
hereinafter  contained  ;  and  the  payment  or  deposit  of  the 
remainder,  if  any,  of  such  money  shall  be  deemed  payment 
and  satisfaction  of  the  whole  thereof,  or  if  such  costs  shall 
exceed  the  amount  of  the  money  so  awarded  or  determined, 
the  excess  shall  be  recoverable  by  distress,  and  on  applica- 
tion to  any  justice  he  shall  issue  his  warrant  accordingly. 
Special  jury  54.  If  either  party  desire  any  such  question  of  disputed 
to  be  sura-  compensation  as  aforesaid  to  be  tried  before  a  special  jury, 
request  of  ^^^h  question  shall  be  so  tried  provided  that  notice  of  such 
either  party,  desire,  if  coming  from  the  other  party,  be  given  to  the  pro- 
moters of  the  undertaking  before  they  have  issued  their 
warrant  to  the  sheriff;  and  for  that  purpose  the  promoters 
of  the  undertaking  shall  by  their  warrant  to  the  sheriff  re- 
quire him  to  nominate  a  special  jury  for  such  trial ;  and 
thereupon  the  sheriff  shall,  as  soon  as  conveniently  may  be 
after  the  receipt  by  him  of  such  warrant,  summon  both  the 
parties  to  appear  before  him,  by  themselves  or  their  attor- 
nies,  at  some  convenient  time  and  place  appointed  by  him 
for  the  purpose  of  nominating  a  special  jury  (not  being  less 
than  five  or  more  than  eight  days  from  the  service  of  such 
summons) ;  and  at  the  place  and  time  so  appointed  the 
sheriff  shall  proceed  to  nominate  and  strike  a  special  jury, 
in  the  manner  in  which  such  juries  shall  be  required  by  the 
laws  for  the  time  being  in  force  to  be  nominated  or  struck 
by  the  proper  officers  of  the  superior  courts,  and  the  sheriff 
shall  appoint  a  day,  not  later  than  the  eighth  day  after 
striking  of  such  jury,  for  the  parties  or  their  agents  to  ap- 
pear before  him  to  reduce  the  number  of  such  jury,  and 
thereof  shall  give  four  days  notice  to  the  parties  ;  and  on 
the  day  so  appointed  the  sheriff  shall  proceed  to  reduce  the 
said  special  jury  to  the  number  of  twenty,  in  the  manner 
used  and  accustomed  by  the  proper  officers  of  the  superior 
courts. 
Deficiency  of  5.5.  The  special  jury  on  such  inquiry  shall  consist  of 
special  jury-  twelve  of  the  said  twenty  who  shall  first  appear  on  the 
"'^""  names  being  called  over,  the  parties  having  their  lawful 


8  Vict.  c.  1 8 — Lands  Clauses.  cxvii 

challenges  against  any  of  the  said  jurymen  ;  and  if  a  full 
jury  do  not  appear,  or  if  after  such  challenges  a  full  jury  do 
not  remain,  then,  upon  the  application  of  either  party,  the 
sheriff  shall  add  to  the  list  of  such  jury  the  names  of  any 
other  disinterested  persons  qualified  to  act  as  special  or  com- 
mon jurymen,  who  shall  not  have  been  previously  struck 
off  the  aforesaid  list,  and  who  may  then  be  attending  the 
court,  or  can  speedily  be  procured,  so  as  to  complete  such 
jury,  all  parties  having  their  lawful  challenges  against  such 
persons ;  and  the  sheriff  shall  proceed  to  the  trial  and  adju- 
dication of  the  matters  in  question  by  such  jury,  and  such 
trial  shall  be  attended  in  all  respects  with  the  like  incidents 
and  consequences,  and  the  like  penalties  shall  be  applicable^ 
as  hereinbefore  provided  in  the  case  of  a  trial  by  common 
jury. 

56.  Any  other  inquiry  than  that  for  the  trial  of  which  Other  inqni- 
such  special  jury  may  have  been  struck  and  reduced  as ''''^'*  ^^'^"'■'^ 
aforesaid  may  be  tried  by  such  jury,  provided  the  parties  jury  b'y'co'n- 
thereto  respectively  shall  give  their  consent  to  such  trial.      sent. 

57.  No  juryman  shall,  without  his  consent,  be  summoned  Jurymen  not 
or  required  to  attend  any  such  proceeding  as  aforesaid  more  l^ore  than 
than  once  in  any  year.  once  a  year. 

58.  The  purchase  money  or  compensation  to  be  paid  for  Compensa- 
any  lands  to  be  purchased  or  taken  by  the  promoters  of  the  t'ont" absent 
undertaking  from  any  party  who,  by  reason  of  absence  from  determined 
the  kingdom,  is  prevented  from  treating,  or  who  cannot  byasurveynr 
after  diligent  inquiry  be  found,  or  who  shall  not  appear  at  twoTJs'tces^ 
the  time  appointed  for  the  inquiry  before  the  jury  as  here- 
inbefore provided  for,  after  due  notice  thereof,  and  the  com- 
pensation to  be  paid  for  any  permanent  injury  to   such 

lands,  shall  be  such  as  shall  be  determined  by  the  valuation 
of  such  able  practical  surveyor  as  two  justices  shall  nomi- 
nate for  that  purpose  as  hereinafter  mentioned. 

59.  Upon  application  by  the  promoters  of  the  undertaking  Two  justices 
to  two  justices,  and  upon  such  proof  as  shall  be  satisfactory  '"  """"""te 
to  them  that  any  such  party  is,  by  reason  of  absence  from 

the  kingdom,  prevented  from  treating,  or  cannot  after  dili- 
gent inquiry  be  found,  or  that  any  such  party  failed  to  ap- 
pear on  such  inquiry  before  a  jury  as  aforesaid,  after  due 
notice  to  him  for  that  purpose,  such  justices  shall,  by  writing 
under  their  hands,  nominate  an  able  practical  surveyor  for 
determining  such  compensation  as  aforesaid,  and  such  sur- 
veyor shall  determine  the  same  accordingly,  and  shall 
annex  to  his  valuation  a  declaration  in  writing  subscribed 
by  him  of  the  correctness  thereof. 


cxviii  Appendix — Statutes. 

neciaration       60.  Before  such  surveyor  shall  enter  upon  the  duty  of 
thesurveyor^  making  such  valuation  as  aforesaid  he  shall,  in  the  presence 
of  such  justices,  or  one  of  them,  make  and  subscribe  the  de- 
claration following  at  the  foot  of  such  nomination :  (that  is 
to  say,) 

'  I,  A.  B.  do  solemnly  and  sincerely  declare,  that  I  will 
'  faithfully,  impartially,  and  honestly,  according  to  the 
'  best  of  my  skill  and  ability,   execute   the  duty  of 
*  making  the  valuation  hereby  referred  to  me.     A.  B. 
'  Made  and  subscribed  in  the  presence  of 
And  if  any  surveyor  shall  corruptly  make  such  declaration, 
or  having  made  such  declaration  shall  wilfully  act  contrary 
thereto,  he  shall  be  guilty  of  a  misdemeanor. 
Valuation,         61 .  The  said  nomination  and  declaration  shall  be  annexed 
^'^rf^"  H*^      ^^  ^^^  valuation  to  be  made  by  such  surveyor,  and  shall  be 
the  owner  of  preserved  together  therewith  by  the  promoters  of  the  under- 
the  lands  on  taking,  and  they  shall  at  all  times  produce  the  said  valuation 
emanri.        ^^^  Other  documents,  on  demand,  to  the  owner  of  the  lands 
comprised  in  such  vahiation,  and  to  all  other  parties  inter- 
ested therein. 
Expenses  to      62.  All  the  expenses  of  and  incident  to  every  such  valu- 
be  borne  by    ation  shall  be  borne  by  the  promoters  of  the  undertaking, 
promo  ers.  ^^^   j^^  estimating  tlie  purchase  money  or  compensation 

money  «id     ^  ^^  V^^^  ^i'  ^^^^  promoters  of  the  undertaking,  in  any  of 
compensa-     the  cases  aforesaid,  regard  shall  be  had  by  the  justices,  arbi- 
lion,  how  to  trators,  or  surveyors,  as  the  case  may  be,  not  only  to  the 
value  of  the  land  to  be  purchased  or  taken  by  the  promoters 
of  the  luidertakins,  but  also  to  the  damage,  if  any,  to  be 
sustained  by  the  owner  of  the  lands  by  reason  of  the  severing 
of  the  lands  taken  from  the  other  lands  of  such  owner,  or 
otherwise  injuriously  affecting  such  other  lands  by  the  exer- 
cise of  the  powers  of  this  or  the  special  act,  or  any  act  in- 
corporated therewith. 
Where  com-      64.  When  the  compensation  payable  in  respect  of  any 
pensation  to  lands,  or  any  interest  therein,  shall  have  been  ascertained 

absent  party   ^     ^     valuation  of  a  Surveyor,  and  deposited  in  the  bank 
has  been  de-     .'  .   .  .•''.,»,  , 

termined  by    Under  the  provisions  herein  contained,  by  reason  that  the 
a  surveyor,     owner  of  or  party  entitled  to  convey  such  lands  or  such 
may'ha^ve  the  interest  therein  as  aforesaid  could  not  be  found  or  was  absent 
-lime  sub-      from  the  kingdom,  if  such  owner  or  party  shall  be  dissatisfied 
ar'bi't'^^^ron     ^^"^^  ^nzV  valuation  it  shall  be  lawful  for  him,  before  he  shall 
have  applied  to  the  Court  of  Chancery  for  payment  or  in- 
vestment of  the  monies  so  deposited  under  the  provisions 
herein  contained,  by  notice  in  writing  to  the  promoters  of  the 
undertaking,  to  require  the  question  of  such  compensation 


8  Vict.  c.  18 — Lands  Clauses.  cxix 

to  be  submitted  to  arbitration,  and  thereupon  the  same  shall 
be  so  submitted  accordingly,  in  the  same  manner  as  in  other 
cases  of  disputed  compensation  hereinbefore  authorized  or 
required  to  be  submitted  to  arbitration. 

65.  The  question  to  be  submitted  to  the  arbitrators  in  the  Question  to 
case  last  aforesaid  shall  be,  whether  the  said  sum  so  de-  ^^  submitted 
posited  as  aforesaid  by  the  promoters  of  the  undertaking  trators. 
was  a  sufficient  sum,  or  whether  any  and  what  further  sum 

ought  to  be  paid  or  deposited  by  them. 

66.  If  the  arbitrators  shall  award  that  a  further  sum  If  further 
ought  to  be  paid  or  deposited  by  the  promoters  of  the  under-  ^"™  award- 
taking,  they  shall  pay  or  deposit,  as  the  case  may  require,  ter's  to  pay  or 
such  further  sum  within  fourteen  days  after  the  making  of  deposit  same 
such  award,  or  in  default  thereof  the  same  may  be  enforced  teeVdays."' 
by  attachment,  or  recovered  with  costs  by  action  or  suit  in 

any  of  the  superior  courts. 

67.  If  the  arbitrators  shall  determine  that  the  sum  so  Costs  of  the 
deposited  was  sufficient,  the  costs  of  and  incident  to  such  "'■titration, 
arbitration,  to  be  determined  by  the  arbitrators,  shall  be  in 

the  discretion  of  the  arbitrators,  but  if  the  arbitrators  shall 
determine  that  a  further  sum  ought  to  be  paid  or  deposited 
by  the  promoters  of  the  undertaking,  all  the  costs  of  and 
incident  to  the  arbitration  shall  be  boi-ne  by  the  promoters 
of  the  undertaking. 

68.  If  any  party  shall  be  entitled  to  any  compensation  in  To  be  settled 
respect  of  any  lands,  or  of  any  interest  therein,  which  shall  ^j^n'^rVurv 
have  been  taken  for  or  injuriously  affected  by  the  execution  at  the  option 
of  the  works,  and  for  which  the  promoters  of  the  under-  of  the  party 
taking  shall  not  have  made  satisfaction  under  the  provisions  compenfa- 
of  this  or  the  special  act,  or  any  act  incorporated  therewith,  tion. 

and  if  the  compensation  claimed  in  such  case  shall  exceed 
the  sum  of  fifty  pounds,  such  party  may  have  the  same 
settled  either  by  arbitration  or  by  the  verdict  of  a  jury,  as 
he  shall  think  fit ;  and  if  such  party  desire  to  have  the  same 
settled  by  arbitration,  it  shall  be  lawful  for  him  to  give  notice 
in  writing  to  the  promoters  of  the  undertaking  of  such  his 
desire,  stating  in  such  notice  the  nature  of  the  interest  in 
such  lands  in  respect  of  which  he  claims  compensation,  and 
the  amount  of  the  compensation  so  claimed  therein  ;  and 
unless  the  promoters  of  the  undertaking  be  willing  to  pay 
the  amount  of  compensation  so  claimed,  and  shall  enter 
into  a  written  agreement  for  that  purpose  within  twenty-one 
days  after  the  receipt  of  any  such  notice  from  any  party  so 
entitled,  the  same  shall  be  settled  by  arbitration  in  the 
manner  herein  provided;  or  if  the  party  so  entitled  as  afore- 
said desire  to  have  such  question  of  compensation  settled  by 


cxx  Appendix — Statutes. 

a  jury,  it  shall  be  lawful  for  him  to  give  notice  in  writing  of 
such  his  desire  to  the  promoters  of  the  undertaking,  stating 
such  particulars  as  aforesaid ;  and  unless  the  promoters  of 
the  undertaking  be  willing  to  pay  the  amount  of  compen- 
sation so  claimed,  and  enter  into  a  written  agreement  for 
that  purpose,  they  shall,  within  twenty-one  days  after  the 
receipt  of  such  notice,  issue  their  warrant  to  the  sheriff  to 
summon  a  jury  for  settling  the  same  in  the  manner  herein 
provided,  and  in  default  thereof  they  shall  be  liable  to  pay 
to  the  party  so  entitled  as  aforesaid  the  amount  of  compen- 
sation so  claimed,  and  the  same  may  be  recovered  by  him, 
with  costs,  by  action  in  any  of  the  superior  courts,  {in) 

Application      And  with  respect  to  the  purchase  money  or  compensation 

of  Compen-  coming  to  parties  having  limited  interests,   or  prevented 

from  treating,  or  not  making  title,  be  it  enacted  as  follows: 

Purchase  69.  If  the  purchase  money  or  compensation  which  shall 

money  pay-    be  payable  in  respect  of  any  lands,  or  any  interest  therein, 

ries^uDde""    purchased  or  taken  by  the  promoters  of  the  undertaking 

disability       from  any  corporation,  tenant  for  life  or  in  tail,  married 

"""•'no^'t^^h    ^'oni'in  seised  in  her  own  right  or  entitled  to  dower,  guar- 

depositedin    dian,  committee  of  lunatic  or  idiot,  trustee,  executor  or  ad- 

the  bank.       ministrator,  or  person  having  a  partial  or  qualified  interest 

only  in   such  lands,  and  not  entitled  to  sell  or  convey  the 

same  except  under  the  provisions  of  this  or  the  special  act, 

or  the  compensation  to  be  paid  for  any  permanent  damage 

to  any  such  lands,  amount  to  or  exceed  the  sum   of  two 

hundred  pounds,  the  same  shall  be  paid  into  the  bank,  in 

the  name  and  with  the  privity  of  the  accountant-general  of 

the   Court  of  Chancery  in  England  if  the  same  relate  to 

lands  in  England  or  Wales,  or  the  accountant  general  of  the 

Coui-t  of  Exchequer  in  Ireland  if  the  same  relate  to  lands 

in   Ireland,  to  be  placed  to  the  account  there  of  such  ac- 

countant-genei'al,  ex  parte  the  promoters  of  the  undertaking 

(desci-ibing  them  by  their  proper  name),  in  the  matter  of 

the  special  act  (citing  it),  pursuant  to  the  method  prescribed 

by  any  act  for  the  time  being  in  force  for  regulating  monies 

paid  into  the  said  courts ;  and  such  monies  shall  remain  so 

{m)  This  clause  would  seem  clearly  to  extend  to  a  case  of 
injury  done  to  land  independently  of  any  taking  of  the  same; 
see  Treatise,  p.  192,  et  seq.  As  to  when  lands  may  be  consi- 
dered to  be  injuriously  alFected,  see  Treatise,  p.  195.  If  the 
sum  claimed  is  under  £50,  the  party's  remedy  would  seem  to 
be  by  application  to  a  justice.     See  ante,  ss.  22,  and  24. 


8  Vict.  c.  18 — Lands  Clauses.  cxxi 

deposited  until  the  same  be  applied  to  some  one  or  more  of 

the  following  purposes;  (that  is  to  say,) 

In  the  purchase  or  redemption  of  the  land  tax,  or  the  Application 
discharge  of  any  debt  or  incumbrance  affecting  the  deposi'ted*. 
land  in  respect  of  which  such  money  shall  have  been 
paid,  or  affecting  other  lands  settled  therewith  to  the 
same  or  the  like  uses,  trusts,  or  purposes  ;  or 
In  the  purchase  of  other  lands  to  be  conveyed,  limited, 
and  settled  upon  the  like  uses,  trusts,  and  purposes, 
and  in  the  same  manner,  as  the  lands  in  respect  of 
which  such  money  shall  have  been  paid  stood  settled ; 
or 
If  such  money  shall  be  paid  in  respect  of  any  buildings 
taken  under  the  authority  of  this  or  the  special  act,  or 
injured  by  the  proximity  of  the  works,  in  removing  or 
replacing  such  buildings,  or  substituting  others  in  their 
stead,  in  such  manner  as  the  Court  of  Chancery  shall 
direct ;  or 
In  payment  to  any  party  becoming  absolutely  entitled  to 
such  money,  (n) 

70.  Such  money  may  be  so  applied  as  aforesaid  upon  an  Order  for 
order  of  the  Court  of  Chancery  in  England  or  the  Court  of  ^{J^  inv'es" 
Exchequer  in  Ireland,  made  on  the  petition  of  the  party  ment  mean- 
who  would  have  been  entitled  to  the  rents  and  profits  of  the  ^1^''^. 
lands  in  respect  of  which  such  money  shall  have  been  de- 
posited ;  and  until   the  money  can  be  so  applied  it  may, 

upon  the  like  order,  be  invested  by  the  said  accountant 
general  m  the  purchase  of  three  per  centum  consolidated  or 
three  per  centum  reduced  bank  annuities,  or  in  government 
or  real  securities,  and  the  interest,  dividends,  and  annual 
proceeds  thereof  paid  to  the  party  who  would  for  the  time 
being  have  been  entitled  to  the  rents  and  profits  of  the 
lands. 

71.  If  such  jiurchase  money  or  compensation  shall  not  Sums  from 
amount  to  the  sum  of  two  hundred  pounds,  and  shall  exceed  to  bJde-"    " 
the  sum  of  twenty  pounds,  the  same  shall  either  be  paid  posited  or 
into  the  bank,  and  applied  in   the  manner  hereinbefore  pai'i  "*  "■"^- 
directed   with  respect  to  sums  amounting  to  or  exceeding 

two  hundred  pounds,  or  the  same  may  lawfully  be  paid  to 
two  trustees,  to  be  non)inated  by  the  parties  entitled  to  the 
rents  or  profits  of  the  lands  in  respect  whereof  the  same 
shall  be  payable,  such  nomination  to  be  signified  by  writing 
under  the  hands  of  the  party  so  entitled;  and  in  case  of  the 

(n)  As  to  construction  of  provisions  for  application  of  monies 
deposited  in  bank  under  particular  railway  acts,  see  Treatise, 
pp.  223,  224. 

F   F 


cxxii  Appendix — Statutes. 

coverture,  infancy,  lunacy,  or  other  incapacity  of  the  parties 
entitled  to  such  monies,  such  nomination  may  lawfully  be 
made  by  their  respective  husbands,  guardians,  committees, 
or  trustees;  but  such  last-mentioned  application  of  the 
monies  shall  not  be  made  unless  the  promoters  of  the  under- 
taking approve  thereof  and  of  the  trustees  named  for  the 
purpose  ;  and  the  money  so  paid  to  such  trustees,  and  the 
produce  arising  therefrom,  shall  be  by  such  trustees  applied 
in  the  manner  hereinbefore  directed  with  respect  to  money 
paid  into  the  bank,  but  it  shall  not  be  necessary  to  obtain 
any  order  of  the  court  for  that  purpose. 
Sumsnotex-  72.  If  such  money  shall  not  exceed  the  sum  of  twenty 
ceeding  2o;.  pounds,  the  same  shall  be  paid  to  the  parties  entitled  to  the 
parties.  rents  and  profits  of  the  lands  in  respect  whereof  the  same 
shall  be  payable,  for  their  own  use  and  benefit,  or  in  case  of 
the  coverture,  infancy,  idiotcy,  lunacy,  or  other  incapacity 
of  any  such  parties,  then  such  money  shall  be  paid,  for  their 
use,  to  the  respective  husbands,  guardians,  committees,  or 
trustees  of  such  persons. 
All  sums  73.  All  sums  of  money  exceeding  twenty  pounds,  which 

payable  un-    may  be  payable  by  the  promoters  of  the  undertaking:  in  re- 
ner  contract  -^  i    *>  •/  i  o 

with  persons  spect  of  the  taking,  using,  or  interfering  with  any  lands 
not  absolute-  under  a  contract  or  agreement  with  any  person  who  shall 
to  be'cafd  "°''  ^®  entitled  to  dispose  of  such  lands,  or  of  the  interest 
into  bank,  therein  contracted  to  be  sold  by  him,  absolutely  for  his  own 
benefit,  shall  be  paid  into  the  bank  or  to  trustees  in  manner 
aforesaid ;  and  it  shall  not  be  lawful  for  any  contracting 
party  not  entitled  as  aforesaid  to  retain  to  his  own  use  anj'' 
portion  of  the  sums  so  agreed  or  contracted  to  be  paid  for 
or  in  respect  of  the  taking,  using,  or  interfering  with  any 
such  lands,  or  in  lieu  of  bridges,  tunnels,  or  other  accom- 
modation works,  or  for  assenting  to  or  not  opposing  the 
passing  of  the  bill  authorizing  the  taking  of  such  lands,  but 
all  such  monies  shall  be  deemed  to  have  been  contracted  to 
be  paid  for  and  on  account  of  the  several  parties  interested 
in  such  lands,  as  well  in  possession  as  in  remainder,  rever- 
sion, or  expectancy  :  provided  always,  that  it  shall  be  in  the 
discretion  of  the  Court  of  Chancery  in  England  or  the  Court 
of  Exchequer  in  Ireland,  or  the  said  trustees,  as  the  case 
may  be,  to  allot  to  any  tenant  for  life,  or  for  any  other  par- 
tial or  qualified  estate,  for  his  own  use,  a  portion  of  the  sum 
so  paid  into  the  bank,  or  to  such  trustees  as  aforesaid,  as 
compensation  for  any  injury,  inconvenience,  or  annoyance 
which  he  may  be  considered  to  sustain,  independently  of 
the  actual  value  of  the  lands  to  be  taken,  and  of  the  damage 
occasioned  to  the  lands  held  therewith,  by  reason  of  the 
taking  of  such  lands  and  the  making  of  the  works. 


I 


8  Vict.  c.  IS — Lands  Clauses.  cxxiii 

74.  Where  any  purchase  money  or  compensation  paid  Court  of 
into  the  hank  under  tht  provisions  of  this  or  the  special  act  i„ay"direct 
shall  have  been  paid  in  respect  of  any  lease  for  a  life  or  lives  application 
or  years,  or  for  a  life  or  lives  and  ye.ars,  or  any  estate  in  °^  money  in 
lands  less  than  the  whole  fee  simple  thereof,  or  of  any  re-  leases  or  re- 
version  dependant  on  any  such  lease  or  estate,  it  shall  be  versions  as 
lawful  for  the  Court  of  Chancery  in  England  or  the  Court  [ijfni^ust. 
of  Exchequer  in  Ireland,  on  the  petition  of  any  party  in- 
terested in   such  money,  to  order  that  the  same  shall  be 

laid  out,  invested,  accumulated,  and  paid  in  such  manner  as 
the  said  court  may  consider  will  give  to  the  parties  interested 
in  such  money  the  same  benefit  therefrom  as  they  might 
lawfully  have  had  from  the  lease,  estate,  or  reversion  in 
respect  of  which  such  money  shall  have  been  paid,  or  as 
near  thereto  as  may  be. 

75.  Upon  deposit  in  the  bank  in  manner  hereinbefore  Upon  depo- 

provided  of  the  purchase  money  or  compensation  agreed  or  ^Lde' the 

awarded  to  be  paid  in  respect  of  any  lands  purchased  or  owners  of 

taken  by  the  promoters  of  the  undertaking  under  the  provi-  the  lands  to 
c   .-,■    '■         .,  •!         .  °      .   ■  L   J  convey,  or  in 

sions  01   this   or  the  special  act,  or  any  act  incorporated  default  the 

therewith,  the  owner  of  such  lands,  including  in  such  term  lands  to  vest 
all  parties  by  this  act  enabled  to  sell  or  convey  lands,  shall,  J^oters^fthe 
when  required  so  to  do  by  the  promoters  of  the  undertaking,  undertaking 
duly  convey  such  lands  to  the  promoters  of  the  undertaking,  "po"  a  deed 
or  as  they  shall  direct ;  and  in  default  thereof,  or  if  he  fail  executedf 
to  adduce  a  good  title  to  such  lands  to  their  satisfaction,  it 
shall  be  lawful  for  the  promoters  of  the  undertaking,  if  they 
think  fit,  to  execute  a  deed  poll  under  their  common  seal  if 
they  be  a  corjioration,  or  if  they  be  not  a  corporation  under 
the  hands  and  seals  of  the  promoters,  or  any  two  of  them, 
containing  a  description  of  the  lands  in  respect  of  which 
such  default  shall  he  made,  and  reciting  the  purchase  or 
taking  thereof  by  the  promoters  of  the  undertaking,  and  the 
names  of  the  parties  from  whom  the  same  were  purchased 
or  taken,  and  the  deposit  made  in  respect  thereof,  and  de- 
claring the  fact  of  such  default  having  been  made,  and 
such  deed  poll  shall  be  stamped  with  the  stamp  duty  which 
would  have  been  payable  upon  a  conveyance  to  the  pro- 
moters of  the  und'-rtaking  of  the  lands  described  therein ; 
and  thereupon  all  the  estate  and  interest  in  such  lands  of  or 
capable  of  being  sold  and  conveyed  by  the  party  between 
whom  and  the  promoters  of  the  undertaking  such  agreement 
shall  have  been  come  to,  or  as  between  whom  and  the  pro- 
moters of  the  undertaking  such  purchase  money  or  compen- 
sation shall  have  been  determined  by  a  jury,  or  by  arbitra- 
tors, or  by  a  surveyor  appointed  by  two  justices  as  herein 
FF  2 


cxxiv  Appendix — Statutes. 

provided,  and  shall  have  been  deposited  as  aforesaid,  shall 
vest  absolutely  in  the  promoters  of  t^e  undertaking,  and  as 
against  such  parties,  and  all  parties  on  behalf  of  v.hom  the}' 
are  hereinbefore  enabled  to  sell  and  convey,  the  promoters 
of  the  undertaking  shall  be  entitled  to  immediate  possession 
of  such  lands,  (o) 
Where  par.        76.  If  the  owner  of  any  such  lands  purchased  or  taken  by 
ties  refuse  to  the  promoters  of  the  undertaking,  or  of  any  interest  therein, 
rio°not'show  "^^  tender  of  the  purchase  money  or  compensation  either 
title,  or  can-  agreed  or  awarded  to  be  paid  in  respect  thereof,  refuse  to 
not  be  found,  accept  the   same,  or  neglect  or  fail  to  make  out  a  title  to 
moiieTto  be*^  such  lands,  or  to  the  interest  therein  claimed  by  him,  to  the 
deposited,      satisfaction  of  the  promoters  of  the  undertaking,  or  if  he  re- 
fuse to  convey  or  release   such  lands  as  directed  by  the 
promoters  of  the  undertaking,  or  if  any  such  owner  be  ab- 
sent from  the  kingdom,  or  cannot  after  diligent  inquiry  be 
found,  or  fail  to  appear  on  the  inquiry  beforea  jury,  as  herein 
provided  for,  it  shall  be  lawful  for  the  promoters  of  the  un- 
dertaking to  deposit  the  purchase  money  or  compensation 
payable  in  respect  of  such  lands,  oi  any  interest  therein,  in 
the  bank,  in  the  name  and  with  the  privity  of  the  accountant- 
general  of  the  Court  of  Chancery  in  England  or  the  Court 
of  Exchequer  in  Ireland,  to  be  placed,  except  in  the  cases 
herein  otherwise  provided  for,  to  his  account  there,  to  the 
credit  of  the  parties  interested  in  such  lands  (describing  them 
so  far  as  the  promoters  of  the  undertaking  can  do),  subject 
to  the  control  and  disposition  of  the  said  court,  (p) 
Upon  depo-        '^T'.  Upon  any  such  deposit  of  money  as  last  aforesaid 
sit  being        being  made  the  cashier  of  the  bank  shall  give  to  the  pro- 
"e    t  fo^be    rnoters  of  the  undertaking,  or  to  the  party  paying  in  such 
(jiven,  and      money  by  their  direction,  a  receipt  for  such  mone}-,  specify- 
the  lands  to  ingtherein for whatandfor  whose use(described  as  aforesaid) 
deed  po°r  ^    the  same  shall  have  been  received,  and  in  respect  of  what 
being  ex-       purchase  the  same  shall  have  been  paid  in  ;  and  it  shall  be 
ecuted.  lawful  for  the  promoters  of  the  undertaking,  if  they  think  fit, 

to  execute  a  deed  poll  under  their  common  seal  if  they  be  a 
corporation,  or  if  they  l)e  not  a  corporation  under  the  hands 
and  seals  of  the  said  promoters,  or  any  two  of  them,  con- 


(o)  As  to  the  effect  of  the  payment,  &c.,  of  the  compensation 
in  operating'  so  as  to  dispense  with  a  conveyance,  see  ante, 
Treat,  p.  213;  and  also  as  to  its  effect  in  binding  the  property, 
see  ante,  Treat,  p.  218. 

(p)  As  to  what  is  a  failure  to  make  out  a  title  &c.,  so  as  to  jus- 
tify the  company  in  paying'  money  into  court  under  particular 
railway  acts,  see  Treatise,  p.  215,  et  seq. 


8  Vict.  c.  18 — Lands  Clauses.  cxxv 

taming  a  description  of  the  lands  in  respect  whereof  such 
deposit  shall  have  been  made,  and  declaring  the  circum- 
stances under  which  the  names  of  the  parties  to  whose 
credit  such  deposit  shall  have  been  made,  and  such  deed 
poll  shall  be  stamped  with  the  stamp  duty  which  would  have 
been  payable  upon  a  conveyance  to  the  promoters  of  the 
undertaking  of  the  lands  described  therein  ;  and  thereupon 
all  the  estate  and  interest  in  such  lands  of  the  parties  for 
whose  use  and  in  reS|>ect  whereof  such  purchase  money  or 
compensation  shall  have  been  deposited  shall  vest  absolutely 
in  the  promoters  of  the  undertaking,  and  as  against  such 
parties  they  shall  be  entitled  to  immediate  possession  of  such 
lands.  (/•) 

78.  Upon  the  application  by  petition  of  any  party  making  Application 
claim  to  the  money  so  deposited  as  last  aforesaid,  or  any  ^eposUed^  ^° 
part  thereof,  or  to  the  lands  in  respect  whereof  the  same 

shall  have  been  so  deposited,  or  any  part  of  such  lands,  or 
any  interest  in  the  same,  tlie  said  Court  of  Chancery  in 
England  or  the  Court  of  Exchequer  in  Ireland  may,  in  a 
summary  way,  as  to  such  court  shall  seem  fit,  order  such 
money  to  be  laid  out  or  invested  in  the  public  funds,  or 
may  order  distribution  thei'eof,  or  payment  of  the  dividends 
thereof,  according  to  the  respective  estates,  titles,  or  interests 
of  the  parties  making  claim  to  such  money  or  lauds,  or  any 
part  thereof,  and  may  make  such  other  order  in  the  premises 
as  to  such  court  shall  seem  fit.  (s) 

79.  If  any  question  arise  respecting  the  title  to  the  lands  Partyinpos- 
in  respect  whereof  such  monies  shall  have  been  so  paid  or  session  to  be 

.  ...        u66niGCl  tnc 

deposited  as  aforesaid,  the  parties  respectively  iti  possession  owner, 
of  such  lands,  as  being  the  owners  thereof,  or  in  receipt  of 
the  rents  of  such  lands,  as  being  entitled  thereto  at  the  time 
of  such  lands  being  purchased  or  taken,  shall  be  deemed  to 
have  been  lawfully  entitled  to  such  lands,  until  the  contrary 
be  shown  to  the  satisfaction  of  the  court ;  and  unless  the 
contrary  be  shown  as  aforesaid,  the  parties  so  in  possession, 
and  all  parties  claiming  under  them,  or  consistently  with 
their  possession,  shall  be  deemed  entitled  to  the  money  so 
deposited,  and  to  the  dividends  or  interest  of  the  annuities 
or  securities  purchased  therewith,  and  the  same  shall  be 
paid  and  applied  accordingly,  (s) 

(r)  See  n.  (o),  ante. 

(s)  Semble,  party  in  possession  entitled,  under  this  and  the 
following  clause,  to  have  money  paid  out  of  court  on  his  own 
affidavit  of  title,  where  no  adverse  claim  is  preferred  by  any 
one  else.     See  Treatise,  p.  223. 


CXXVl 

Costs  in 
cases  of  mo- 
ney depo- 
sited. 


Convey, 
anees. 

Form  of 
convey- 
EDces. 


Appendix — Statutes. 

80.  In  all  cases  of  monies  deposited  in  the  bank  under 
the  provisions  of  this  or  the  special  act,  or  any  act  incor- 
porated therewith,  except  where  such  monies  shall  have 
been  so  deposited  by  reason  of  the  wilful  refusal  of  any 
party  entitled  thereto  to  receive  the  same,  or  to  convey  or 
release  the  lands  in  respect  whereof  the  same  shall  be  pay- 
able, or  by  reason  of  the  wilful  neglect  of  any  party  to  make 
out  a  good  title  to  the  land  required,  it  shall  be  lawful  for 
the  Court  of  Chancery  in  England  or  the  Court  of  Ex- 
chequer in  Ireland  to  order  the  costs  of  the  following  mat- 
ters, including  therein  aU  reasonable  charges  and  expenses 
incident  thereto,  to  be  paid  by  the  promoters  of  the  under- 
taking ;  (that  is  to  say,)  the  costs  of  the  purchase  or  taking 
of  the  lands,  or  which  shall  have  been  incurred  in  conse- 
quence thereof,  other  than  such  costs  as  are  herein  other- 
wise provided  for,  and  the  cost  of  the  investment  of  such 
monies  in  government  or  real  securities,  and  of  the  rein- 
vestment thereof  in  the  purchase  of  other  lands,  and  also 
the  costs  of  obtaining  the  proper  orders  for  any  of  the  pur- 
poses aforesaid,  and  of  the  orders  for  the  payment  of  the 
dividends  and  interest  of  the  securities  upon  which  such 
monies  shall  be  invested,  and  for  the  payment  out  of  court 
of  the  principal  of  such  monies,  or  of  the  securities  whereon 
the  same  shall  be  invested,  and  of  all  proceedings  relating 
thereto,  except  such  as  are  occasioned  by  litigation  between 
adverse  claimants;  provided  always,  that  the  costs  of  one 
application  only  for  reinvestment  in  land  shall  be  allowed, 
unless  it  shall  appear  to  the  Court  of  Chancery  in  England 
or  the  Court  of  Exchequer  in  Ireland  that  it  is  for  the 
benefit  of  the  parties  interested  in  the  said  monies  that  the 
same  should  be  invested  in  the  purchase  of  lands,  in  differ- 
ent sums  and  at  different  times,  in  which  case  it  shall  be 
lawful  for  the  court,  if  it  think  fit,  to  order  the  costs  of  any 
such  investments  to  be  paid  by  the  promoters  of  the  under- 
taking, (u) 

And  with  respect  to  the  conveyances  of  lands,  be  it 
enacted  as  follows : 

81.  Conveyances  of  lands  to  be  purchased  under  the 
provisions  of  this  or  the  special  act,  or  any  act  incorporated 
therewith,  may  be  according  to  the  forms  in  the  schedules 

(u)  As  to  questions  of  costs  in  cases  of  money  deposited  in 
the  bank  under  prior  acts,  see  Treatise,  p.  228,  et  seq  Quare, 
whether  under  this  clause  costs  of  payment  of  the  dividends 
can  be  claimed  ;  see  Treatise,  p.  230.  As  to  what  costs  have 
been  held  to  be  costs  of  reinvestment,  see  Treatise,  p.  232. 


8  Vict.  c.  18 — Lands  Clauses.  cxxvii 

(A.)  and  (B.)  respectively  to  this  act  annexed,  or  as  near 
thereto  as  the  circumstances  of  the  case  will  admit,  or  by 
deed  in  any  other  form  which  the  promoters  of  the  under- 
taking may  think  fit ;  and  all  conveyances  made  according 
to  the  forms  in  the  said  schedules,  or  as  near  thereto  as  the 
circumstances  of  the  case  will  admit,  shall  be  effectual  to 
vest  the  lands  thereby  conveyed  in  the  promoters  of  the  un- 
dertaking, and  shall  operate  to  merge  all  terms  of  years 
attendant  by  express  declaration,  or  by  construction  of  law, 
on  the  estate  or  interest  so  thereby  conveyed,  and  to  bar 
and  to  destroy  all  such  estates  tail,  and  all  other  estates, 
rights,  titles,  remainders,  reversions,  limitations,  trusts  and 
interests  whatsoever,  of  and  in  the  lands  comprised  in  such 
conveyances  which  shall  have  been  purchased  or  compen- 
sated for  by  the  consideration  therein  mentioned;  but 
although  terms  of  years  be  thereby  merged,  they  shall  in 
equity  afford  the  same  protection  as  if  they  had  been  kept 
on  foot,  and  assigned  to  a  trustee  for  the  promoters  of  the 
undertaking  to  attend  the  reversion  and  inheritance. 

82.  The  costs  of  all  such  conveyances  shall  be  borne  by  Costs  of  cob 
the  promoters  of  the  undertaking,  and  such  costs  sball  in- 
clude all  charges  and  expenses  incurred,  on  the  part  as  well 

of  the  seller  as  of  the  purchaser,  of  all  conveyances  and 
assurances  of  any  such  lands,  and  of  any  outstanding  terms 
or  interests  therein,  and  of  deducing,  evidencing,  and  verify- 
ing the  title  to  such  lands,  terms,  or  interests,  and  of  making 
out  and  furnishing  such  abstracts  and  attested  copies  as  the 
promoters  of  the  undertaking  may  require,  and  all  other 
reasonable  expenses  incident  to  the  investigation,  deduction, 
and  verification  of  such  title,  (x) 

83.  If  the  promoters  of  the  undertaking  and  the  party  Taxation  of 
entitled  to  any  such  costs  shall  not  agree  as  to  the  amount  costs  of  con- 
thereof,  such  costs  shall  be  taxed  by  one  of  the  taxing  masters  ^^i''"  *^' 
of  the  Court  of  Chancery,  or  by  a  master  in  Chancery  in  Ire- 
land, upon  an  order  of  the  same  court,  to  be  obtained  upon 
petition  in  a  summary  way  by  either  of  the  parties  ;  and  the 
promoters  of  the  undertaking  shall  pay  what  the  said  master 

shall  certify  to  be  due  in  respect  of  such  costs  to  the  party 
entitled  thereto,  or  in  default  thereof  the  same  may  be 
recovered  in  the  same  way  as  any  other  costs  payable  under 
an  order  of  the  said  court,  or  the  same  may  be  recovered  by 
distress  in  the  inanner  hereinbefore  provided  in  other  cases 
of  costs;  and  the  expense  of  taxing  such  costs  shall  be  borne 
by  the  promoters  of  the  imdertaking,  unless  upon  such  taxa- 

(x)  See  Treatise,  p.  226. 


Jppendix — Statutes.  ^ 


tion  one-sixth  part  of  the  amount  of  such  costs  shall  be  dis- 
allowed, in  which  case  the  costs  of  such  taxation  shall  be 
borne  by  the  party  whose  costs  shall  be  so  taxed,  and  the 
amount  thereof  shall  be  ascertained  by  the  said  master,  and 
deducted  by  him  accordingly  in  his  certificate  of  such  tax- 
ation, (j/) 

E7itry  on        And  with  respect  to  the  entry  (z)  upon  lands  by  the  pro- 
Lands.      moters  of  the  undertaking,  be  it  enacted  as  follows : 
Payment  of        ^^'  "^^^  promoters  of  the  undertaking  shall  not,  except 
price  to  be     by  consent  of  the   owners  and  occupiers,  enter  upon  any 
made  previ-    ]ands  which  shall  be  required  to  be  purchased  or  perma- 
except  to       nently  used  for  the  pui"poses  and  under  the  powers  of  this 
survey,  &c.    or  the  special  act,  until  they  shall  either  have  paid  to  every 
party  having  any  interest  in  such  lands,  or  deposited  in  the 
bank,  in  the  manner  herein  mentioned,  the  purchase  money 
or  compensation  agreed  or  awarded  to  be  paid  to  such  parties 
respectively  for  their  respective  interests  therein :  provided 
always,  that  for  the  purpose  merely  of  surveying  and  taking 
levels  of  such  lands,  and  of  probing  or  boring  to  ascertain 
the  nature  of  the  soil,  and  of  setting  out  the  line  of  the 
works,  it  shall  be  lawful  for  the  promoters  of  the  under- 
taking, after  giving  not  less  than  three  nor  more  than  four- 
teen days  notice  to  the  owners  or  occupiers  thereof,  to  enter 
upon  such  lands  without  previous  consent,  making  compen- 
sation for  any  damage  thereby  occasioned  to  the  owners  or 
occupiers  thereof 
Promoters  to      85.  Provided  also,  that  if  the  promoters  of  the  under- 
be  allowed  to  t^]jijjg  gi^aU  ]jg  desirous  of  entering  upon  and  using  any 
fands  before  such  lands  before  an  agreement  shall  have  been  come  to 
purchase,  on  or  an  award  made,  or  verdict  given  for  the  purchase  money 
"o^sit T  'ivav  °^  compensation  to  be  paid  by  them  in  respect  of  such  lands, 
of  security  '  it  shall  be  lawful  for  the  promoters  of  the  undertaking  to 
and  giving     deposit  in  the  bank  by  way  of  security,  as  hereinafter  men- 
tioned, either  the  amount  of  purchase  money  or  compensa- 
tion claimed  by  any  party  interested  in  or  entitled  to  sell 
and  convey  such  lands,  and  who  shall  not  consent  to  such 
entry,  or  such  a  sum  as  shall,  by  a  surveyor  appointed  by 
two  justices  in  the  manner  hereinbefore  provided  in  the  case 
of  parties  who  cannot  be  found,  be  determined  to  be  the 
value  of  such  lands,  or  of  the  interest  therein  which  such 
party  is  entitled  to  or  enabled  to  sell  and  conyey,  and  also 

{y)  As  to  effect  of  special  agreement  on  subject  of  taxation 
of  costs,  see  Treat,  ante,  p.  225, 

(s)  See  as  to  effect  of  entry  before  payment  of  compensa- 
tion, &c.,  Treat,  ante,  p.  214. 


8   Vict.  c.  18 — Lands  Clauses.  cxxix 

to  give  to  such  party  a  bond,  under  the  common  seal  of  the 
promoters  if  they  be  a  corporation,  or  if  they  be  not  a  cor- 
poration under  the  hands  and  seals  of  the  said  promoters, 
or  any  two  of  them,  with  two  sufficient  sureties  to  be  ap- 
proved of  by  two  justices  in  case  the  parties  differ,  in  a 
penal  sum  equal  to  the  sum  so  to  be  deposited,  conditioned 
for  payment  to  such  party,  or  for  deposit  in  the  bank  for  the 
benefit  of  the  parties  interested  in  such  lands,  as  the  case 
may  require,  under  the  provisions  herein  contained,  of  all 
such  purchase  money  or  compensation,  as  may  in  manner 
hereinbefore  provided  be  determined  to  be  payable  by  the 
promoters  of  the  undertaking  in  respect  of  the  lands  so  en- 
tered upon,  together  with  interest  thereon,  at  the  rate  of 
five  pounds  per  centum  per  annum,  from  the  time  of  enter- 
ing on  such  lands,  until  such  purchase  money  or  compen- 
sation shall  be  paid  to  such  party,  or  deposited  in  the  bank 
for  the  benefit  of  the  parties  interested  in  such  lands,  under 
the  provisions  herein  contained;  and  upon  such  deposit  by 
way  of  security  being  made  as  aforesaid,  and  such  bond 
being  delivered  or  tendered  to  such  non-consenting  party  as 
aforesaid,  it  shall  be  lawful  for  the  promoters  of  the  under- 
taking to  enter  upon  and  use  such  lands,  without  having 
first  paid  or  deposited  the  purchase  money  or  compensation 
in  other  cases  required  to  be  paid  or  deposited  by  tlieni 
before  entering  upon  any  lands  to  be  taken  by  them  under 
the  provisions  of  this  or  the  special  act. 

86.  The  money  so  to  be  deposited  as  last  aforesaid  shall  Upon  depo- 

be  paid  into  the  bank  in  the  name  and  with  the  privity  of  ^'*  V''''"^u- 
1  1^1/-.  !• /^l  ■'-'11  oiaue  cashier 

the  accountant-general  ot  the  Court  oi  Chancery  m  i^ngland  to  give  re- 

or  the  court  of  Exchequer  in  Ireland,  to  be  placed  to  his  ceipt. 

account  there  to  the  credit  of  the  parties   interested  in  or 

entitled  to  sell  and  convey  the  lands  so  to  be  entered  upon, 

and  who  shall  not  have  consented  to  such  entry,  subject  to 

the  control  and  disposition  of  the  said  court ;  and  upon  such 

deposit  being  made,  the  cashier  of  the  bank  shall  give  to 

the  promoters  of  the  undertaking,  or  to  the  party  paying  in 

such  money  by  their  direction,  a  receipt  for  such  money, 

specifying  therein  for  what  purpose  and  to  whose  credit  the 

same  shall  have  been  paid  in. 

87.  'i'lie  money  so  deposited  as  last  aforesaid  shall  remain  deposit  to 

in  the  bank,  by  way  of  security  to  the  parties  whose  lands  security^  ami 

shall  so  have  been  entered  upon  for  the  performance  of  the  to  be  applied 

condition  of  the  bond  to  be  given  by  the  promoters  of  the  "P'l-r  "'^ 

.    .     ^        o  ■•^111  direction  of 

undertakmg,  asherenibeiore  mentioned,  and  tlie  same  may,  the  court. 

on  the  application  by  petition  of  the  promoters  of  the  under- 
taking, be  ordered  to  be  invested  in  Bank  Annuities  or  Go- 


cxxx  Appendix — Statutes. 

vernment  securities,  and  accumulated;  and  upon  the  con- 
dition of  such  bond  being  fully  performed  it  shall  be  lawful 
for  the  Court  of  Chancery  in  England,  or  the  Coui-t  of  Ex- 
chequer in  Ireland,  upon  a  like  application,  to  order  the 
money  so  deposited,  or  the  funds  in  which  the  same  shall 
have  been  invested,  together  with  the  accumulation  thereof, 
to  be  repaid  or  transferred  to  the  promoters  of  the  under- 
taking, or  if  such  condition  shall  not  be  fully  performed,  it 
shall  be  lawful  for  the  said  court  to  order  the  same  to  be  ap- 
plied in  such  manner  as  it  shall  think  fit  for  the  benefit  of 
the  parties  for  whose  security  the  same  shall  so  have  been 
deposited. 
The  com-  88.  If  at  any  time  the  company  be  unable,  by  reason  of 

Dav^the^de-    ^^^  closing  of  the  office  of  the  acccountant-general  of  the 
posit  money  Court  of  Chancery  in  England,  or  the  Court  of  Exchequer 
into  the  bank  in  Ireland,  to  obtain  his  authority  in  respect  of  the  payment 
cnliyauring  0^  ^'^J  sum  of  money  so  authorized  to  be  deposited  in  the 
the  time  that  bank  by  way  of  security  as  aforesaid,  it  shall  be  lawful  for 
th^  °a*'"cou°t   '^^  company  topayinto  the  bank  to  the  credit  of  such  party 
ant  general     Or  matter  as  the  case  may  require  (subject  nevertheless  to 
is  closed.       being  dealt  with  as  hereinafter  provided,  and  not  otherwise), 
such   sum  of  money  as  the  promoters  of  the  undertaking 
shall,  by  some  writing  signed  by  their  secretary  or  solicitors 
for  the  time  being,  addressed  to  the  governor  and  company 
of  the  bank  in  that  behalf,  request,  and  upon  any  such  pay- 
ment being  made  the  cashier  of  the  bank  shall  give  a  certi- 
ficate thereof;  and  in  every  such  case,  \vithin  ten  da3's  after 
the  reopening  of  the  said  accountant-general's  office,  the 
solicitor  for  the  promoters  of  the  undertaking  shall  there 
bespeak  the  direction  for  the  payment  of  such  sum  into  the 
name  of  the  accountant-general,  and  upon  production  of 
such  direction  at  the  Bank  of  England  the  money  so  pre- 
viously paid  in  shall  be  placed  to  the  credit  of  the  said 
accountant-general  accordingly,  and  the  receipt  for  the  said 
payment  be  given  to  the  party  making  the  same  in  the  usual 
way  for  the  purpose  of  being  filed  at  the  Report  Office. 
Penalty  on         gg,  Jf  the  promoters  of  the  undertaking  or  any  of  their 
tersof  the*     Contractors  shall,  except  as  aforesaid, wilfully  enter(a)  upon 
undertaking  and  take  possession  of  anj*  lands  which  shall  be  required  to 
upo"'iifi)ds    ^^  purchased  or  permanently  used  for  the  purposes  of  the 
without  eon-  special  act,  without  such  consent  as  aforesaid,  or  without 
sent  before    having  made  such  payment  for  the  benefit  of  the  parties  in- 
the^pnrchase  terested  in  the  lands,  or  such  deposit  by  way  of  security  as 
money. 

(a)  As  to  the  remedy  in  equity  in  such  case,  see  Treatise, 
ante,  p.  214. 


J 


8  Vict.  c.  1 8 — Lands  Clauses.  cxxxl 

aforesaid,  the  promoters  of  the  undertaking  shall  forfeit  to 
the  party  in  possession  of  such  lands  the  sum  often  pounds, 
over  and  above  the  amount  of  any  damage  done  to  such 
lands  by  reason  of  such  entry  and  taking  possession  as  afore- 
said, such  penalty  and  damage  respectively  to  be  recovered 
before  two  justices;  and  if  the  promoters  of  the  undertaking 
or  their  contractors  shall,  after  conviction  in  such  penalty  as 
afoi-esaid,  continue  in  unlawful  possession  of  any  such  lands, 
the  promoters  of  the  undertaking  shall  be  liable  to  forfeit 
the  sum  of  twenty-five  pounds  for  every  day  they  or  their 
contractors  shall  so  remain  in  possession  as  aforesaid,  such 
penalty  to  be  recoverable  by  the  party  in  possession  of  such 
lands,  with  costs,  by  action  in  any  of  the  superior  courts  : 
provided  always,  that  nothing  herein  contained  shall  be  held 
to  subject  the  promoters  of  the  undertaking  to  tlie  payment  of 
any  such  penalties  as  aforesaid,  if  they  shall  bona  fide  and 
without  collusion  have  paid  the  compensation  agreed  or 
awarded  to  be  paid  in  respect  of  the  said  lands  to  any  person 
whom  the  promoters  of  the  undertaking  may  have  reason- 
ably believed  to  be  entitled  thereto,  or  shall  have  deposited 
the  same  in  the  bank  for  the  benefit  of  the  parties  interested 
in  the  lands,  or  made  such  deposit  by  wa}'  of  security  in 
respect  thereof  as  hereinbefore  mentioned,  although  such 
person  may  not  have  been  legally  entitled  thereto. 

90.  On  the  trial  of  any  action  for  any  such  penalty  as  Decision  oi' 
aforesaid  the  decision  of  the  justices  under  the  provision  J^s'i'^s*  not 
hereinbefore  contained  shall  not  be  held  conclusive  as  to  the  as  to  the'^^ 
right  of  entry  on  any  such  lands  by  the  promoters  of  the  right  of  the 
undertaking.  _        promoters. 

91.  If  in  any  case  in  which,  according  to  the  provisions  Proceedings 
of  this  or  the  special  act,  or  any  act  incorporated  therewith,  j."  ^^''^  of  le- 
the  promoters  of  the  undertaking  are  authorized  to  enter  verpo°3gg^ '" 
upon  and  take  possession  of  any  lands  required  for  the  pur-  sionofiamis. 
poses  of  the  undertaking,  the  owner  or  occupier  of  any  such 

lands  or  any  other  person  refuse  to  give  up  the  possession 
thereof,  or  hinder  the  promoters  of  the  undertaking  from 
entering  upon  or  taking  possession  of  the  same,  it  shall  be 
lawful  for  tlie  promoters  of  the  undertaking  to  issue  their 
warrant  to  the  slierifF  to  deliver  possession  of  the  same  to 
the  person  appointed  in  such  warrant  to  receive  the  same, 
and  upon  the  receipt  of  such  warrant  the  sheriff' shall  deliver 
possession  of  any  such  lands  accordingly,  and  the  costs  accru- 
ing by  reason  of  the  issuing  and  execution  of  such  warrant,  to 
be  settled  by  the  sheriff",  shall  be  paid  by  the  person  refusing 
to  give  possession,    and  the  amount  of  such  costs  shall  be 


cxxxii  Appendix — Statutes. 

deducted  and  retained  by  the  promoters  of  the  undertaking 
from  the  compensation,  if  any,  then  payable  by  them  to  such 
party,  or  if  no  such  compensation  be  payable  to  such  party, 
or  if  the  same  be  less  than  the  amount  of  such  costs,  then 
such  costs,  or  the  excess  thereof  beyond  such  compensation, 
if  not  paid  on  demand,  sliall  be  levied  by  distress,  and  upon 
application  to  any  justice  for  that  purpose  he  shall  issue  his 
warrant  accordingly. 
Parties  not  99.  And  be  it  enacted,  that  no  party  shall  at  any  time 
quired  to  sell  ^^^  required  to  sell  or  convey  to  the  promoters  of  the  under- 
partof  a  taking  a  part  only  of  any  house  or  other  building  or  manu- 
factory, if  such  party  be  willing  and  able  to  sell  and  convey 
the  whole  thereof  {b) 


house. 


Intersected        And  with  rcspect  to  small  portions  of  intersected  land,  be 

it  enacted  as  follows: 
Owners  of         93.  If  any  lands  not  being  situate  in  a  town  or  built  upon 
frl!i7n,^ll!f„   shall  be  so  cut  through  and  divided  by  the  works  as  to  leave, 
sist  on  bale,    either  on  both  sides  or  on  one  side  thereof,    a  less  quantity 
of  land  than  half  a  statute  acre,    and  if  the  owner  of  such 
small  parcel  of  land  require  the  promoters  of  the  undertaking 
to  purchase  the  same  along  with  the  other  land  required  for 
the  purjtoses  of  the  special  act,  the  promoters  of  the  under- 
taking shall  purchase  the  same  accordingly,  unless  the  owner 
thereof  have  other  land  adjoining  to  that  so  left  into  which 
the  same  can  be  thrown,  so  as  to  be  conveniently  occupied 
therewith ;  and  if  such  owner  have  any  other  land  so  ad- 
joining, the  promoters  of  the  undertaking  shall,  if  so  required 
by  the  owner,  at  their  own  expense,  throw  the  piece  of  land 
so  left  into  such  adjoining  land  by  removing  the  fences  and 
levelling  the  sites  thereof,  and  by  soiling  the  same  in  a  suffi- 
cient and  workmanlike  manner. 
Promoters         94.  If  any  such  land  shall  be  so  cut  through  and  divided 
taking'ma'y"  ^^  ^°  leave  on  either  side  of  the  works  apiece  of  land  of  less 
insist  on        extent  than  half  a  statute  acre,  or  of  less  value  than  the  ex- 
purchase       pense  of  making  a  bridge,  culvert,  or  such  other  commuiii- 
pense  of'      cation  between  the  land  so  divided  as  the  promoters  of  the 
hridges,  5cc.    undertaking  arc,  under  the  provisions  of  this  or  the  special 
value*  *'  ^    act,  or  any  act  incorporated  therewith,  compellable  to  make, 
and  if  the  owner  of  such  lands  have  not  other  lands  adjoin- 
ing such  piece  of  land,  and  require  the  promoters  of  the  un- 
dertaking to  make  such  communication,  then  the  promoters 
of  the  undertaking  may  require  such  owner  to  sell  to  them 

(A)  See  as  to  interpretation  of  analogous  provisions  in  piior 
acts,  Treatise,  pp.  J 12,  113. 


S  Vict.  c.  18 — Lands  Clauses.  cxxxiii 

such  piece  of  land,  and  any  dispute  as  to  the  vaUie  of  such 
piece  of  land,  or  as  to  what  would  be  the  expense  of  making 
such  communication,  shall  be  ascertained  as  herein  provided 
for  cases  of  disputed  compensation  ;  and  on  the  occasion  of 
ascertaining  the  value  of  the  land  required  to  be  taken  for 
the  purposes  of  the  works,  the  jury  or  the  arbitrators,  as  the 
case  may  be,  shall,  if  required  by  either  party,  ascertain  by 
their  verdict  or  award  the  value  of  any  such  severed  piece 
of  land,  and  also  what  would  be  the  expense  of  making  such 
connnunication. 

And  with  respect  to  copyhold  lands,  be  it  enacted  as  fol-   Copyholds. 
lows: 

95.  Every  conveyance  to  the  promoters  of  the  imdertak-  Conveyance 
ing  of  any  lands  which  shall  be  of  copyhold  or  customary  of  copyhold 
tenure,  or  of  the  nature  thereof,  shall  be  entered  on  the  rolls  enroUed. 
of  the  manor  of  which  the  same  shall  be  held  or  parcel;  and 

on  payment  to  the  steward  of  such  manor  of  such  fees  as 
would  be  due  to  him  on  the  surrender  of  the  same  lands  to 
the  use  of  a  purchaser  thereof  he  shall  make  such  enrol- 
ment; and  every  such  conveyance,  when  so  enrolled,  shall 
have  the  like  effect,  in  respect  of  such  copyhold  or  customary 
lands,  as  if  the  same  had  been  of  freehold  tenure,  neverthe- 
less, until  such  lands  shall  have  been  enfranchised  by  virtue 
of  the  powers  hereinafter  contained,  they  shall  continue 
subject  to  the  same  fines,  rents,  heriots,  and  services  as  were 
theretofore  payable  and  of  right  accustomed. 

96.  Within  three  months  after  the  enrolment  of  the  con-  Copyhold 
veyance  of  any  such  copyhold  or  customary  lands,  or  within  '^".''* '"  'j^ 
one  month  after  tlie  promoters  of  the  undertaking  shall  ed.  '^ 
enter  upon  and  make  use  of  the  same  for  the  purposes  of 

the  works,  whichever  shall  first  happen,  or  if  more  than  one 
parcel  of  such  lands  holden  of  the  same  manor  shall  have 
been  taken  by  them,  then  within  one  month  after  the  last  of 
such  parcels  shall  have  been  so  taken  or  entered  on  by 
them,  the  promoters  of  the  undertaking  shall  procure  the 
whole  of  the  lands  holden  of  such  manor  so  taken  by  them 
to  be  enfranchised,  and  for  that  purpose  shall  apply  to  the 
lord  of  the  manor  whereof  sucli  lands  are  holden  to  enfran- 
chise the  same,  and  shall  pay  to  liim  such  compensation  in 
respect  thereof  as  shall  be  agreed  u])on  between  them  and 
him,  and  if  tlie  parties  fail  to  agree  respecting  the  amount  of 
the  compensation  to  be  paid  for  such  enfranchisement,  the 
same  shall  be  determined  as  in  otiier  cases  of  disputed  com- 
pensation; and  in  estimating  such  compensation  the  loss  in 


CXXXIV 


Appendix — Statutes. 


Lord  of  the 
manor  to 
enfranchise 


respect  of  the  fines,  heriots,  and  other  services  payable  on 
death,  descent,  or  ahenation,  or  any  other  matters  which 
would  be  lost  by  the  vesting  of  such  copyhold  or  customary 
lands  in  the  promoters  of  the  undertaking,  or  by  the  enfran- 
chisement of  the  same,  shall  be  allowed  for. 

97.  Upon  payment  or  tender  of  the  compensation  so 
agreed  upon  or  determined,  or  on  deposit  thereof  in  the 

on  payment  bank  in  any  of  the  cases  hereinbefore  in  that  behalf  pro- 
of oompen-  vided,  the  lord  of  the  manor  whereof  such  copyhold  or  cus- 
sation.  tomary  lands  shall  be  holden  shall  enfranchise  such  lands, 

and  the  lands  so  enfranchised  shall  for  ever  thereafter  be 
held  in  free  and  common  socage ;  and  in  default  of  such 
enfranchisement  by  the  lord  of  the  mano,  or  if  he  fail  to 
adduce  a  good  title  thereto  to  the  satisfation  of  the  pro- 
moters of  the  undertaking,  it  shall  be  lawful  for  them,  if 
they  think  fit,  to  execute  a  deed  poll,  duly  stamped,  in  the 
manner  hereinbefore  provided  in  the  case  of  the  purchase  of 
lands  by  them,  and  thereupon  the  lands  in  respect  of  the 
enfi-anchisement  whereof  such  compensation  shall  have  been 
deposited  as  aforesaid  shall  be  deemed  tobe  enfranchised, 
and  shall  be  for  ever  thereafter  held  in  free  and  common 
socage. 

98.  If  any  such  copyhold  or  customary  lands  be  subject 
to  any  customarj'  or  other  rent,  and  part  only  of  the  land 
subject  to  any  such  rent  be  required  to  be  taken  for  the 
purposes  of  the  special  act,  the  apportionment  of  such  rent 
\i\ix\  be  settled  by  agreement  between  the  owner  of  the  lands 
and  the  lord  of  the  manor  on  the  one  part,  and  the  pro- 
moters of  the  undertaking  on  the  other  part,  and  if  such 
apportionment  be  not  so  settled  by  agreement,  then  the 
same  shall  be  settled  by  two  justices;  and  the  enfranchise- 
ment of  any  copyhold  or  customary  lands  taken  by  Wrtue 
of  this  or  the  special  act,  or  the  apportionment  of  such 
rents,  shall  not  affect  in  other  respects  any  custom  by  or 
under  which  any  such  copyhold  or  customary  lands  not 
taken  for  such  purposes  shall  be  held;  and  if  any  of  the 
lands  so  required  be  released  from  any  portion  of  the  rents 
to  which  they  were  subject  jointly  with  any  other  lands, 
such  last-mentioned  lands  shall  be  chai-ged  with  the  remain- 
der only  of  such  rents;  and  with  reference  to  any  such 
apportioned  rents,  the  lord  of  the  manor  shall  have  all  the 
same  rights  and  remedies  over  the  lands  to  which  such  ap- 
portioned rent  shall  have  been  assigned  or  attributed  as  he 
had  previously  over  the  whole  of  the  lands  subject  to  such 
rents  for  the  whole  of  such  rents. 


Apportion- 
ment of 
copyhold 
rents. 


8   Vict.  c.  18 — Land)!  Clauses.  cxxxv 

And  with  respect  to  any  such  lands  being  common  or    Common 
waste (c)  lands,  be  it  enacted  as  follows:  Lands. 

99.  The  compensation  in  respect  of  the  riglit  in  the  soil  Compensa- 

of  any  lands  svibiect  to  any  rights  of  common  shall  be  p.iid  "onforcom- 

i-^ii^-i''  -1         1111  x-zi     1   ,     ,1       mon  lands, 

to  the  lord  of  the  manor,  in  case  he  shall  be  entitled  to  the  where  held 

same,  or  to  such  party,  other  than  the  commoners,  as  sliall  of  a  manor, 
be  entitled  to  such  right  in  the  soil ;  and  the  compensation  be  pa^^)^ '" 
in  respect  of  all  other  commonable  and  other  rights  in  or 
over  such  lands,  including  therein  any  commonable  or  other 
rights  to  wliich  the  lord  of  the  manor  may  be  entitled,  other 
than  his  right  in  the  soil  of  such  lands,  shall  be  determined 
and  paid  and  applied  in  manner  hereinafter  provided  with 
respect  to  common  lands  the  right  in  the  soil  of  which  shall 
belong  to  the  commoners;  and  upon  payment  or  deposit  in 
the  bank  of  the  compensation  so  determined,  all  such  com- 
monable and  other  rights  shall  cease  and  be  extinguished, 

100.  Upon  payment  or  tender  to  the  lord  of  the  manor,  Lord  of  the 
or  such  other  party  as  aforesaid,  of  the  compensation  which  manor,  &c. 
shall  have  been  agreed  upon  or  determined  in  respect  of  the  Jhe'^cro'^^ '° 
right  in  the  soil  of  any  such  lands,  or  on  deposit  thereof  in  moters  of 
the  bank  in  any  of  the  cases  hereinbefore  in  that  behalf  pro-  the  under- 
vided,  such  lord  of  the  manor,  or  such  other  party  as  afore-  receiving" 
said,  shall  convey  such  lands  to  the  promoters  of  the  under-  compensa- 
taking,  and  such  conveyance  shall  have  the  effect  of  vesting  ;  Jj^er^"  t '^'* 
such  lands  in  the  promoters  of  the  undertaking,   in  like 
manner  as  if  such  lord  of  the  manor,  or  such  other  party  as 
aforesaid,  had  been  seised  in  fee  simple  of  such  lands  at  the 

time  of  executing  such  conveyance;  and  in  default  ofsucli 
conveyance  it  shall  be  lawful  for  the  promoters  of  the  under- 
taking, if  they  think  fit,  to  execute  a  deed  poll  duly  stamped, 
in  the  manner  hereinbefore  provided  in  the  case  of  the  pur- 
chase of  lands  by  them,  and  thereupon  the  lands  in  respect 
whereof  such  last-mentioned  compensation  shall  have  been 
deposited  as  aforesaid,  shall  vest  absolutely  in  the  promoters 
of  the  undertaking,  and  they  shall  be  entitled  to  immediate 
possession  thereof,  subject  nevertheless  to  the  commonable 
and  other  rights  theretofore  affecting  the  same,  until  such 
rights  shall  have  been  extinguished  by  payment  or  deposit 
of  the  compensation  for  the  same  in  manner  hereinafter 
provided. 

301.  The  compensation  to  be  paid  with  respect  to  any  Compensa- 
such  lands,  being  common  lands,  or  in  the  nature  thereof,  tionforcom- 
the  right  to  the  soil  of  which  shall  belong  to  the  commoners,  wherein"/ 
as  well  as  the  compensation  to  be  paid  for  the  commonable  held  of  a 

(c)  See  Calor  v.  Crot/don  Canal  Company,  4  Y.  &  Coll.  405. 


A  meeting  of 
the  parties 
interested  to 


xxxvi  Appendix — Statutes. 

^'^^orho'w  and  other  rights  in  or  over  common  lands,  the  right  in  tlie 
tained"  '  ^°^^  wliereof  shall  not  belong  to  the  commoners,  other  than 
the  compensation  to  the  lord  of  the  manor,  or  other  party 
entitled  to  the  soil  thereof,  in  respect  of  his  right  in  the  soil 
thereof,  shall  be  determined  by  agreement  between  the  pro- 
moters of  the  undertaking  and  a  committee  of  the  parties 
entitled  to  commonable  or  other  rights  in  such  lands,  to  be 
appointed  as  next  hereinafter  mentioned. 

102.  It  shall  be  lawful  for  the  promoters  of  the  under- 
taking to  convene  a  meeting  of  the  parties  entitled  to  com- 
be convened,  monable  or  other  rights  over  or  in  such  lands  to  be  held  at 

someconvenientplace  in  the  neighbourhood  of  the  lands,  for 
the  purpose  of  their  appointing  a  committee  to  treat  with 
the  promoters  of  the  undertaking  for  the  compensation  to  be 
paid  for  the  extinction  of  such  commonable  or  other  rights  ; 
and  every  such  meeting  shall  be  called  by  public  advertise- 
ment, to  be  inserted  once  at  least  in  two  consecutive  weeks 
in  some  newspaper  circulating  in  the  county  or  in  the  re- 
spective counties,  and  in  the  neighbourhood  in  which  such 
lands  shall  be  situate,  the  last  of  such  insertions  being  not 
more  than  fourteen  nor  less  than  seven  days  prior  to  any 
such  meeting  ;  and  notice  of  such  meeting  shall  also,  not 
let-s  than  seven  days  previous  to  the  holding  thereof,  be 
atiixed  upon  the  door  of  the  parish  church  where  such  meet- 
ing is  intended  to  be  held,  or  if  there  be  no  such  church, 
some  other  place  in  the  neighbourhood  to  which  notices  are 
usually  affixed;  and  if  such  lands  be  parcel  or  holden  of  a 
manor,  a  like  notice  shall  be  given  to  the  lord  of  such 
manor. 

103.  It  shall  be  lawful  for  the  meeting  so  called  to  ap- 
point a  committee,  not  exceeding  five  in  number,  of  the 
parties  entitled  to  any  such  rights;  and  at  such  meeting 
the  decision  of  the  majority  of  the  persons  entitled  to  com- 
monable rights  present  shall  bind  the  minority  and  all  the 
absent  parties. 

Committee         104.  It  shall  be  lawful  for  the  committee  so  chosen,  to 

to  agree  with  enter  into  an  agreement  with  the  promoters  of  the  under- 

lers  of  the"    taking  for  the  compensation  to  be  paid  for  the  extinction  of 

undertaking,  such  commonable  and  other  rights,  and  all  matters  relating 

thereto,  for  and  on  behalf  of  themselvesand  all  other  parties 

interested  therein  ;  and  all  such  parties  shall  be  bound  by 

such  agreement;  audit  shall  be  lawful  for  such  committee 

to  receive  the  compensation  so  agreed  to  be  paid,  and  the 

receipt  of  such  committee,  or  of  any  three  of  them,  for  such 

compensation,  shall  be  an  effectual  discharge  for  the  same  ; 

and  such  compensation,  when  received,  shall  be  apportioned 


Sleeting  to 
appoint  a 
committee. 


8  Vict.  c.  18 — Lands  Clauses.  cxxxvii 

by  the  committee  among  the  several  persons  interested 
thereiii,  according  to  tlieir  respective  interests,  but  the  pro- 
moters of  the  undertaking  shall  not  be  bound  to  see  to  the 
apportionment  or  to  the  application  of  such  compensation, 
nor  sliall  they  be  liable  for  the  misapplication  or  nonappli- 
cation  thereof. 

1C5.  If  upon  such  committee  being  appointed,  they  shall  Disputes  to 
fail  10  agree  with  the  promoters  of  the  undertaking  as  to  the  /„  other 
amount  of  the  compensation  to  be  paid  as    aforesaid,  the  cases, 
same  shall  be  determined  as  in  other  cases  of  disputed  com- 
pensation. 

106.  If,  upon  being  duly  convened  by  the  promoters  of  Ifno*^"™- 
the  undertaking,  no  effectual  meeting  of  tlie  parties  entitled  "plo'lnte'd. 
to  such  commonable  or  other  rights  shall  take  place,  or  if  the  amount 
taking  place,  such  meeting  fail  to  appoint  such  committee,  '''.^'^  deter 
the  amount  of  such  compensation  shall  be  determined  by  a  surveyor, 
surveyor,  to  be  appointed  by  two  justices,  as  herein-before 
provided  in  the  case  of  parties  who  cannot  be  found. 

107.  Upon  payment  or  tender  to  sucli  committee,  or  any  Upon  pay- 
three  of  tliem,  or  if  there  shall  be  no  such  committee  then  """"'"f,!;?"" 

...  1     •       1  •  ■    1  -       1      pensation 

upon  deposit  in  the  liank  in  the  manner  provided  in  the  payable  to 
like  case  of  the  compensation  which  sliall  have  been  agreed  commoners 
upon  or  determined  in  respect  of  such  commonable  or  other  ^^^^ 
rights,  it  shall  be  lawful  for  the  promoters  of  the  undertaking, 
if  they  think  fit,  to  execute  a  deed  poll,  duly  stamped,  in  the 
manner  herein-before  provided  in  the  case  of  the  purchase 
of  lands  by  them,  and  thereupon  the  lands  in  respect  of 
which  such  compensation  shall  have  been  so  paid  or  depo- 
sited shall  vest  in  the  promoters  of  the  undertaking,  freed 
and  discharged  from  all  such  commonable  or  other  rights, 
and  they  shall  be  entitled  to  immediate  ])ossession  thereof ; 
and  it  shall  be  lawful  for  the  Court  of  Chancery  in  England, 
or  the  Court  of  Exchequer  in  Ireland,  by  an  order  to  be 
made  upon  petition,  to  order  payment  of  the  money  so 
deposited  to  a  committee  to  be  appointed  as  aforesaid,  or  to 
make  such  other  order  in  respect  thereto,  for  the  benefit  of 
the  parties  interested,  as  it  shall  think  fit. 

And  with  respect  to  lands  subject  to  mortgage,  be  it    Lands  in 
enacted  as  follows  :  Mortga>^e. 

108.  It  shall  be  lawful  for  the  promoters  of  the  under-  Power  to 
taking  to  purchase  or  redeem  the  interest  of  the  mortgagee  ■''^deem 
of  any  such  lands  which  may  be  required  for  the  purposes 
of  the  special  act,   and  that  whether  they  shall  have  pre- 
viously purchased  the  equity  or  redemption  of  such  lands  or 
not,  and  whether  the  mortgagee  thereof  be  entitled  thereto 


Deposit  of 
mortgage 
money  on 
refusal  to 
accept. 


Appendix — Statutes, 

in  his  own  right  or  in  trust  for  any  other  party,  and  whether 
he  be  in  possession  of  such  landsby  virtue  of  such  mortgage 
or  not,  and. whether  such  mortgage  affect  such  lands  solely, 
or  jointly  with  any  other  lands  not  required  for  the  purposes 
of  the  special  act,  and  in  order  thereto  the  promoters  of  the 
undertaking  may  pay  or  tender  to  such  mortgagee  the  prin- 
cipal and  interest  due  on  such  mortgage,  together  with  his 
costs  and  charges,  if  any,  and  also  six  months  additional 
interest,  and  thereupon  such  mortgagee  shall  immediately 
convey  his  interest  in  the  lands  comprised  in  such  mortgage 
to  the  promoters  of  the  undertaking,  or  as  they  shall  direct, 
or  the  promoters  of  the  undertaking  may  give  notice  in 
writing  to  such  mortgagee  that  they  will  pay  off  the  principal 
and  interest  due  on  such  mortgage  at  the  end  of  six  months, 
computed  from  the  day  of  giving  such  notice  ;  and  if  they 
shall  have  given  any  such  notice,  or  if  the  party  entitled  to 
the  equity  of  redemption  of  any  such  lands  shall  have  given 
six  months  notice  of  his  intention  to  redeem  the  same,  then 
at  the  expiration  of  either  of  such  notices,  or  at  any  inter- 
mediate period,  upon  payment  or  tender  by  the  promoters 
of  the  undertaking  to  the  mortgagee  of  the  principal  money 
due  on  such  mortgage,  and  the  interest  which  would  become 
due  at  the  end  of  six  months  from  the  time  of  giving  either 
of  such  notices,  together  with  his  costs  and  expenses,  if  any, 
such  mortgagee  shall  convey  or  release  his  interest  in  the 
lands  comprised  in  such  mortgage  to  the  promoters  of  the 
undertaking,  or  as  they  shall  direct. 

109.  If,  in  either  of  the  cases  aforesaid,  upon  such  pay- 
ment or  tender,  any  mortgagee  shall  fail  to  convey  or  release 
his  interest  in  such  mortgage  as  directed  by  the  promoters 
of  the  undertaking,  or  if  he  fail  to  adduce  a  good  title  thereto 
to  their  satisfaction,  then  it  shall  be  lawful  for  the  promoters 
of  the  undertaking  to  deposit  in  the  bank,  in  the  manner 
provided  by  this  act  in  like  cases,  the  principal  and  interest, 
together  with  the  costs,  if  any,  due  on  such  mortgage,  and 
also,  if  such  payment  be  made  before  the  expii'ation  of  six 
months  notice  as  aforesaid,  such  further  interest  as  would 
at  that  time  become  due  ;  and  it  shall  be  lawful  for  them,  if 
they  think  fit,  to  execute  a  deed  poll,  duly  stamped,  in  the 
manner  herein-before  provided  in  the  case  of  the  purchase 
of  lands  by  them;  and  thereupon,  as  well  as  upon  such 
conveyance  by  the  mortgagee,  if  any  such  be  made,  all  the 
estate  and  interest  of  such  mortgagee,  and  of  all  persons  in 
trust  for  him,  or  for  whom  he  may  be  a  trustee,  in  such 
lands,  shall  vest  in  the  promoters  of  the  undertaking,  and 
they  shall  be  entitled  to  immediate  possession  thereof  in 


I 


8  Vict.  c.  1 8 — Lands  Clauses.  cxxxix 

case  such  mortgagee  were  himself  entitled  to  such  posses- 
sion. 

110.  If  any  such  mortgaged  lands  shall  be  of  less  value  Sum  to  be 
than  the  principal,  interest,  and  costs  secured  thereon,  the  jJfoftKase" 
value  of  such  lands,  or  the  compensation  to  be  made  by  the  exceeds  the 
promoters  of  the  undertaking  in  respect  thereof,  shall  be  ^'''"^  °'  *^^ 
settled  by  agreement  between  the  mortgagee  of  such  lands 

and  the  party  entitled  to  the  equity  of  redemption  thereof 
on  the  one  part,  and  the  promoters  of  the  undertaking  on 
the  other  part,  and  if  the  parties  aforesaid  fail  to  agree 
respecting  the  amount  of  such  value  or  compensation,  the 
same  shall  be  determined  as  in  other  cases  of  disputed  com- 
pensation ;  and  the  amount  of  such  value  or  compensation, 
being  so  agreed  upon  or  determined,  shall  be  paid  by  the 
promoters  of  the  undertakingto  the  mortgagee  in  satisfaction 
of  his  mortgage  debt  so  far  as  the  same  will  extend,  and 
upon  payment  or  tender  thereof  the  mortgagee  shall  convey 
or  release  all  his  interest  in  such  mortgaged  lands  to  the 
promoters  of  the  undertaking,  or  as  they  shall  direct. 

111.  If,  upon  such  payment  or  tender  as  aforesaid  being  Deposit  of 
made,  any  such  mortgagee  fail  so  to  convey  his  interest  in  '^Jf^sldoa'' 
such  mortgage,  or  to   adduce  a  good  title  thereto  to  the  tender, 
satisfaction  of  the  promoters  of  the  undertaking,  it  shall  be 

lawful  for  them  to  deposit  the  amount  of  such  value  or 
compensation  in  the  bank,  in  the  manner  provided  by  this 
act  in  like  cases,  and  ever}'  such  payment  or  deposit  shall 
be  accepted  by  the  mortgagee  in  satisfaction  of  his  mortgage 
debt,  so  far  as  the  same  will  extend,  and  sliall  be  a  full  dis- 
charge of  such  mortgaged  lands  from  all  money  due  thereon ; 
and  it  shall  be  lawful  lor  the  promoters  of  the  undertaking, 
if  they  think  fit,  to  execute  a  deed  poll,  duly  stamped,  in 
the  manner  herein-before  provided  in  the  case  of  the  pur- 
chase of  lands  by  them ;  and  thereupon  such  lands,  as  to 
all  such  estate  and  interest  as  were  then  vested  in  the  mort- 
gagee, or  any  person  in  trust  for  him,  shall  become  abso- 
lutely vested  in  the  promoters  of  the  undertaking,  and  they 
shall  be  entitled  to  immediate  possession  thereof  in  case 
such  mortgagee  were  himself  entitled  to  such  possession ; 
nevertheless,  all  rights  and  remedies  possessed  by  the  mort- 
gagee against  the  mortgagor,  by  virtue  of  any  bond  or 
covenant  or  other  obligation,  other  than  the  right  to  such 
lands,  shall  remain  in  force  in  respect  of  so  much  of  the 
mortgage  debt  as  shall  not  have  been  satisfied  by  such  pay- 
ment or  deposit. 

112.  If  a  part  only  of  any  such  mortgaged  lands  be  Sum  to  be 
required  for  the  purposes  of  the  special  act,  and  if  the  part  P*"^  where 


cxl  Appendix — Statutes. 

part  only  of  SO  requii'ed  be  of  less  value  than  the  principal  money,  in- 
mortgaged     terest,  and  costs  secured  on  such  lands,  and  the  mortgagee 
an  s  ta  en.  gij^|[  jjqj-  consider  the  remaining  part  of  such  lands  a  suffi- 
cient security  for  the  money  charged  thereon,  or  be  not 
willing  to  release  the  part  so  required,  then  the  value  of 
such  part,  and  also  the  conpensation  (if  any)  to  be  paid  in 
respect  of  the  severance  thereof  or  otherwise,  shall  be  settled 
by  agreement  between  the  mortgagee  and  the  party  entitled 
to  the  equity  of  redemption  of  such  land  on  the  one  part, 
and  the  promoters  of  the  undertaking  on  the  other,  and  if 
the  parties  aforesaid  fail  to  agree  respecting  the  amount  of 
•    such  value  or  compensation,  the  same  shall  be  determined 
.  as  in  other  cases  of  disputed  compensation ;  and  the  amount 

of  such  value  or  compensation,  being  so  agreed  upon  or 
determined,  shall  be  paid  by  the  promoters  of  the  under- 
taking to  such  mortgagee  in  satisfaction  of  his  mortgage 
debt,  so  far  as  the  same  will  extend ;  and  thereupon  such 
mortgagee  sliall  convey  or  release  to  them,  or  as  they  shall 
direct,  all  his  interest  in  such  mortgaged  lands  the  value 
whereof  shall  have  been  so  paid  ;  and  a  memorandum  of 
what  shall  have  been  so  paid  shall  be  endorsed  on  the  deed 
creating  such  mortgage,  and  shall  be  signed  by  the  mort- 
gagee ;  and  a  copy  of  such  memorandum  shall  at  the  same 
time  (if  required)  be  furnished  by  the  promoters  of  the 
undertaking,  at  their  expense,  to  the  party  entitled  to  the 
equity  of  redemption  of  the  lands  comprised  in  such  mort- 
gage deed. 
Tieposit  of  W^.  If,  upon  payment  or  tender  to  any  such  mortgagee 
money  when  of  the  amount  of  the  value  or  compensation  so  agreed  upon 
t'end'^'^  °"  ^^  determined,  such  mortgagee  shall  fail  to  convey  or  release 
to  the  promoters  of  the  undertaking,  or  as  they  shall  direct, 
his  interest  in  the  lands  in  respect  of  which  such  compen- 
sation shall  so  have  been  paid  or  tendered,  or  if  he  shall  fail 
to  adduce  a  good  title  thereto  to  the  satisfaction  of  the  pro- 
moters of  the  undertaking,  it  shall  be  lawful  for  the  pro- 
moters of  the  undertaking  to  pay  the  amount  of  such  value 
or  compensation  into  the  bank,  in  the  manner  provided  by 
this  act  in  the  case  of  monies  required  to  be  deposited  in 
such  bank,  and  such  payment  or  deposit  shall  be  accepted 
by  such  mortgagee  in  satisfaction  of  his  mortgage  debt,  so 
far  as  the  same  will  extend,  and  shall  be  a  full  discharge  of 
the  portion  of  the  mortgaged  lands  so  required  from  all 
money  due  thereon;  and  it  shall  be  lawful  for  the  promoters 
of  the  undertaking,  if  they  think  fit,  to  execute  a  deed  poll, 
duly  stamped  in  the  manner  hereinbefore  provided  in  the 


8  Vict.  c.  18 — Lands  Clauses.  cxli 

case  of  the  purchase  of  lands  by  them;  and  thereupon  such 
lands  shall  become  absolutely  vested  in  the  promoters  of  the 
undertaking,  as  to  all  such  estate  and  interest  as  were  then 
vested  in  the  mortgagee,  or  any  person  in  trust  for  him,  and 
in  case  such  mortgagee  were  himself  entitled  to  such  posses- 
sion they  shall  be  entitled  to  immediate  possession  thereof; 
nevertheless,  every  such  mortgagee  shall  have  the  same 
powers  and  remedies  for  recovering  or  compelling  payment 
of  the  mortgage  money,  or  the  residue  thereof,  as  the  case 
maybe,  and  the  interest  thereof  respectively,  upon  and  out 
of  the  residue  of  such  mortgaged  lands,  or  the  portion 
thereof  not  required  for  the  purposes  of  the  special  act,  as 
he  would  otherwise  have  had  or  been  entitled  to  for  recover 
ing  or  compelling  payment  thereof  upon  oroutof  the  whole 
of  the  lands  originally  comprised  in  such  mortgage. 

114.  Provided  always,  that  in  any  of  the  cases  herein-  CompMr^a- 
before  provided  with  respect  to  lands  subject  to  mortgage,  if  ti"n  to  he 
in  the  mortgage  deed  a  time  shall  have  been  limited  for  J^j'^^^.^"^^?,'!' 
payment  of  the  principal  money  thereby  secured,  and  under  mortga(»e 
the  provisions  hereinbefore  contained  the  mortgagee  shall  P""*  "^ 
have  been  required  to  accept  payment  of  his   mortgage  stipulated 
money,  or  of  part  thereof,  at  a  time  earlier  than  the  time  so  time, 
limited,  the  promoters  of  the  undertaking  shall  pay  to  such 
mortgagee,  in  addition  to  the  sum  which  shall  have  been  so 
paid  off,  all  such  costs  and  expenses  as  shall  be  incurred  by 
such  mortgagee  in  respect  of  or  which  shall  be  incidental  to 
the  re-investment  of  the  sum  so  paid  off,  such  costs  in  case 
of  difference  to  be  taxed  and  paym.ent  thereof  enforced  in 
the  manner  herein  provided  with  respect  to  the  costs  of  con- 
veyances ;  and  if  the  rate  of  interest  secured  by  such  mort- 
gage be  higher  than  at  the  time  of  the  same  being  so  paid 
off  can  reasonably  be  expected  to  be  obtained  on  re-invest- 
ing the  same,  regard  being  had  to  the  then  current  rate  of 
interest,  such  mortgagee  shall  be  entitled  to  receive  from  the 
promoters  of  the  undertaking,  in  addition  to  the  principal 
and  interest  hereinbefore  provided  for,  compensation  in  re- 
spect of  the  loss  to  be  sustained  by  him   by  reason   of  his 
mortgage  money  being  soprematnrel3'paid  off,  the  amount 
of  such  compensation  to  be  asccrt^iined,  in  case  of  difference, 
as  in  other  cases  of  disputed  compensation;  and  until  pay- 
ment or  tender  of  such  compensation  as  aforesaid  the  pro- 
moters of  the  undertaking  shall  not  be  entitled,   as  against 
such  mortgagee,  to  possession  of  the  mortgaged  lands  under 
the  provision  hereinbefore  contained. 

And  with  respect  to  lands  charged  with  any  ;-ent-service,       !'''"'■ 


cxlii 


Release 
of  lands 
from  rent- 
charges. 


Release  of 
part  of  lands 
from  charge. 


Deposit  in 
case  of  re- 
fusal to  re- 
lease. 


Charge  to 
continue  on 
lands  not 
taken. 


Appendix — Statutes . 

rent-charge,  or  chief  or  other  rent,  or  other  payment  or 
incumbrance  not  hereinbefore  provided  for,  be  it  enacted  as 
follows:  — 

115.  If  any  difference  shall  arise  between  the  promoters 
of  the  undertaking  and  the  party  entitled  to  any  such  charge 
upon  any  lands  required  to  be  taken  for  the  purposes  of  the 
special  act,  respecting  the  consideration  to  be  paid  for  the 
release  of  such  lands  therefrom,  or  from  the  portion  thereof 
affecting  the  lands  required  for  the  purposes  of  the  special 
act,  the  same  shall  be  determined  as  in  other  cases  of  dis- 
puted compensation. 

116.  If  part  only  of  the  lands  charged  with  any  such 
rent-service,  rent-charge,  chief  or  other  rent,  payment,  or 
incumbrance,  be  required  to  be  taken  for  the  purposes  of 
the  special  act,  the  apportionment  of  any  such  charge  may 
be  settled  by  agreement  between  the  party  entitled  to  such 
charge  and  the  owner  of  the  lands  on  the  one  part,  and  the 
promoters  of  the  undertaking  on  the  other  part,  and  if  such 
apportionment  be  not  so  settled  by  agreement  the  same  shall 
be  settled  by  two  justices  ;  but  if  the  remaining  part  of  the 
lands  so  jointly  subject  be  a  sufficient  security  for  such 
charge,  then,  with  consent  of  the  owner  of  the  lands  so 
jointly  subject,  it  shall  be  lawful  for  the  party  entitled  to 
such  charge  to  release  thei-efrom  the  lands  required,  on  con- 
dition or  in  consideration  of  such  other  lands  remaining  ex- 
clusively subject  to  the  whole  thereof. 

117.  Upon  payment  or  tender  of  the  compensation  so 
agreed  upon  or  determined  to  the  party  entitled  to  any  such 
charge  as  aforesaid,  such  party  shall  execute  to  the  pro- 
moters of  the  undertaking  a  release  of  such  charge  ;  and  if 
he  fail  so  to  do,  or  if  he  fail  to  adduce  good  title  to  such 
charge,  to  the  satisfaction  of  the  promoters  of  the  tmder- 
taking,  it  shall  be  lawfid  for  them  to  deposit  the  amount  of 
such  compensation  in  the  bank  in  the  manner  hereinbefore 
provided  in  like  cases,  and  also,  if  they  think  fit,  to  execute 
a  deed  poll,  duly  stamped,  in  the  manner  hereinbefore  pro- 
vided in  the  case  of  the  purchase  of  lands  by  them,  and 
thereupon  the  rent-service,  rent-charge,  chief  or  other  rent, 
payment  or  incumbrance,  or  the  portion  thereof  in  respect 
whereof  such  compensation  shall  so  have  been  paid,  shall 
cease  and  be  extinguished. 

118.  If  any  such  lands  be  so  released  from  any  such 
charge  or  incumbrance,  or  portion  thereof,  to  which  they 
were  subject  jointly  with  other  lands,  such  last-mentioned 
lands  shall  alone  be  charged  with  the  whole  of  such  charge, 
or  with  the  remainder  thereof,  as  the  case  may  be,  and  the 


\ 


8  Vict.  c.  18 — Lands  Clauses.  cxliii 

party  entitled  to  the  charge  shall  have  all  the  same  rights 
and  remedies  over  such  last-mentioned  lands,  for  the  whole 
or  for  the  remainder  of  the  charge,  as  the  case  may  be,  as 
he  had  previously  over  the  whole  of  the  lands  subject  to 
such  charge ;  and  if  upon  any  such  charge  or  portion  of 
«harge  being  so  released  the  deed  or  instrument  creating  or 
transferring  such  charge  be  tendered  to  the  promoters  of 
the  undertaking  for  the  purpose,  they  or  two  of  them  shall 
subscribe,  or  if  they  be  a  corporation  shall  affix  their  com- 
mon seal  to  a  memorandum  of  such  release  endorsed  on 
such  deed  or  instrument,  declaring  what  part  of  the  lands 
originally  subject  to  such  charge  shall  have  been  purchased 
by  virtue  of  the  special  act,  and  if  the  lands  be  released 
from  part  ot  such  charge,  what  proportion  of  such  charge 
shall  have  been  released,  and  how  much  thereof  continues 
payable,  or  if  the  lands  so  requii'ed  shall  have  been  released 
from  the  whole  of  such  charge,  then  that  the  remaining 
lands  are  thenceforward  to  remain  exclusively  charged 
therewith  ;  and  such  memorandum  shall  be  made  and  exe- 
cuted at  the  expense  of  the  promoters  of  the  undertaking, 
and  shall  be  evidence  in  all  courts  and  elsewhere  of  the  facts 
therein  stated,  but  not  so  as  to  exclude  any  other  evidence 
of  the  same  facts. 

And  with  respect  to  lands  subject  to  leases,  be  it  enacted      Leas^i. 
as  follows : 

119.   Ifanylands    shall  be  comprised  in  a  lease  for  a  where  part 
terms  of  years  unexpired,  part  only  of  which  lands  shall  be  only  of  land 
required  for  the  purposes  of  the  special  act,  the  rent  payable  taken,  the  "^ 
in  respect   of  the  lands  comprised  in  such  lease  shall  be  rent  to  be 
apportioned  between  the  lands  so  required  and  the  residue  apportioned, 
of  such  lands  ;  and  such  apportionment  may  be  settled  by 
agreement  between  the  lessor  and  lessee  of  such  lands  on 
the  one  part,  and  the  promoters  of  the  undertaking  on  the 
other  part,  and  if  such  apportionment  be  not  so  settled  by 
agreement  between  the  parties,  such  apportionment  shall  be 
settled  by  two  justices ;  and  after  such  apportionment  the 
lessee  of  such  lands  shall,  as  to  all  future  accruing  rent,  be 
liable  only  to  so  much  of  the  rent  as  shall  be  so  apportioned 
in  respect  of  the  lands  not  required  for  the  purposes  of  the 
special  act;  and  as  to  the  lauds  not  so  required,  and  as 
against  the  lessee,  the  lessor  shall  have  all  the  same  rights 
and  remedies  for  the  recovery  of  such  portion  of  rent  as 
previously  to  such  apportionment  he  had  for  the  recovery  of 
the  whole  rent  reserved  by  such  lease ;  and  all  the  covenants, 
conditions,  and  agreements  of  such  lease,  except  as  to  the 


cxliv  Appendix — Statutes. 

amount  of  rent  to  be  paid,  shall  remain  in  force  with  regard 
to  that  part  of  the  land  which  shall  not  be  required  for  the 
piu'poses  of  the  special  act,  in  the  same  manner  as  they 
would  have  done  in  case  such  part  only  of  the  land  had  been 
included  in  the  lease. 
Tenant*  to         120.  Every  such  lessee  as  last  aforesaid  shall  be  entitled 
1)6  compen-    ^(^  receive  from  the  promoters  of  the  undertaking  compen- 
sation for  the  damage  done  to  him  in  his  tenancy  by  reason 
of  the  severance  of  the  lands  required   from    those  not 
required,  or  otherwise  by  reason  of  the  execution  of  the 
works. 
Conipen'^a.         121.  If  any  such  lands  shall  be  in  the  possession  of  any 
^"•'di'J'"^       person  having  no  greater  interest  therein  than  as  tenant  for 
ii-nants  at      a  year  or  from  year  to  year,  and  if  such  person  be  required 
will,  &c.        to  give  up  possession  of  any  lands  so  occupied  by  him  before 
the  expiration  of  his  term  or  interest  therein,   he  shall  be 
entitled  to  compensation  for  the  value  of  his  unexpired  term 
or  interest  in  such  lands,  and  for  any  just  allowance  which 
ought  to  be  made  to  him  by  an  in-coming  tenant,  and  for 
any  loss  or  injury  he  may  sustain,  or  if  a  part  only  of  such 
lands  be  required,  compensation  for  the  damage  done  to  him 
in  his  tenancy  by  severing  the  lands  held  by  him,  or  other- 
wise injuriously  affecting  the  same;  and  the  amountof  such 
compensation  shall  be  determined  by  two  justices,  in  case 
the  parties  differ  about  the  same ;  and  upon  payment  or 
tender  of  the  amount  of  such  compensation  all  such  persons 
shall  respectively  deliver  up  to  the  promoters  of  the  under- 
taking, or  to  the  person  appointed  by  them  to  take  posses- 
sion thereof,  any  such  lands  in  their  possession  required  for 
the  purposes  of  the  special  act  (</). 
Where  great-      122.  If  any  party,  having  agreater  interest  than  as  tenant 
er  interest      at  will,  claim  compensation  in  respect  of  any  unexpired 
frol^year^^o"  term  or  interest  under  any  lease  or  grant  of  any  such  lands, 
year,  lease  to  the  promoters  of  the  undertaking  may  require  such  party  to 
be  produced,  pi-oduce  the  lease  or  grant  in  respect  of  which  such  claim 
shall  be  made,  or  the  best  evidence  thereof  in  his  power ; 

(d)  Tenant  from  year  to  year,  &c.,  where  required  to  give  up 
possession  under  this  clause,  not  entitled  to  compensation  in 
regard  thereof,  where  the  possession  is  not  actually  given  up, 
but  by  a  subsequent  arrangement  between  the  tenant  and  the 
company,  is  retained  by  him  till  the  full  expiration  of  his 
tenancy,  see  Treatise,  p.  189. 

It  would  seem  that  under  the  provisions  of  this  clause,  a 
tenant  required  to  give  up  possession  may  claim  compensation 
for  sometliing  more  than  a  mere  legal  interest,  viz.  for  good 
will  and  the  like.  See  Treatise,  pp.  190,  191. 


8  Vict.  c.  ]  8 — Lands  Clauses,  cxlv 

and  if,  after  demand  made  in  writing  by  the  promoters  of 
the  undertaking,  such  lease  or  grant,  or  such  best  evidence 
thereof,  be  not  produced  within  twenty-one  days,  the  party 
so  claiming  compensation  shall  be  considered  as  a  tenant 
holding  only  from  year  to  year,  and  be  entitled  to  compen- 
sation accordingly. 

123.  And  be  it  enacted,  that  the  powers  of  the  promoters  Limitof  time 
of  the  undertaking  for  the  compulsory  purchase  or  takino-  forcompuU 
of  lands  for  the  purposes  of  the  special  act  shall  not  be  chase''."'" 
exercised  after  the  expiration  of  the  prescribed  period,  and  if 

no  period  be  prescribed  not  after  the  expiration  of  three 
years  from  the  passing  of  the  special  act. 

And  with  respect  to  interests  in  lands  which  have  by     interests 
mistake  been  omitted  to  be  purchased,  be  it  enacted  as  omitted  to  be 
follows :  purchased. 

124.  If,  at  any  time  after  the  promoters   of  the  under-  Promoters  of 
taking  shall  have  entered  upon  any  lands  which  under  the  the  under- 
provisions  of  this  or  the  special  act,  or  any  act  incorporated  powefed"to 
therewith,  they  were  authorized  to  purchase,  and  which  purchase 
shall  be  permanently  required  for  the  purposes  of  the  special  {'''^^.^^h  '" 
act,  any  party  shall   appear  to  be  entitled  to  any  estate,  purchase 
right,  or  interest  in  or  charge  affecting  such  lands  whicli  the  whereof  may 
promoters  of  the  undertaking  shall  tlu-ough  mistake  or  inad-  omitted  by 
vertence  have  failed  or  omitted  duly  to  purchase  or  to  pay  mistake, 
compensation  for,  then,  whether  the  period  allowed  for  the 
purchase  of  lands  shall  have  expired  or  not,  the  promoters 

of  the  undertaking  shall  remain  in  the  undisturbed  posses- 
sion of  such  lands,  provided,  within  six  months  after  notice 
of  such  estate,  right,  interest,  or  charge,  in  case  the  same 
shall  not  be  disputed  by  the  promoters  of  tlie  undertaking, 
or  in  case  the  same  shall  be  disputed  then  within  six  months 
"after  the  right  thereto  shall  have  been fuially  established  by 
law  in  favour  of  the  party  claiming  the  same,  tlie  promoters 
of  the  undertaking  shall  purchase  or  pay  compensation  for 
the  same,  and  shall  also  pay  to  such  party,  or  to  any  otlua- 
party  who  may  establish  a  right  thereto,  full  coinpcnsatioa 
for  the  mesne  profits  or  interest  which  would  have  accrued 
to  such  parties  respectively  in  respect  thereof  during  the 
interval  between  the  entry  of  the  promoters  of  the  under- 
taking thereon  and  the  time  of  the  payment  of  such  pur- 
chase money  or  compensation  by  the  promoters  of  the  un- 
dertaking, so  far  as  such  mesne  ])rofits  or  interest  may  be 
recoverable  in  law  or  equity;  and  such  purchase  money  or 
cornpensation  shall  be  agreed  on  or  awarded  and  ])aid  in 
like  manner  as  according  to  the  provisions  of  this  act  tlic 
G  c 


cxlvi  Appendix — Statutes. 

same  respectively  would  have  been  agreed  on  or  awarded 
and  paid  in  case  the  promoters  of  the  undertaking  had  pur- 
chased such  estate,  right,  interest,  or  charge  before  their 
entering  upon  such  land,  or  as  near  thereto  as  circum- 
stances will  admit. 
Howvalueof      125.  In  estimating  the  compensation  to  be  given  for  any 
such  lands  to  .such  last-mentioned  lands,  or  any  estate  or  interest  in  the 
ees  imated.  g^me,  or  for  any  mesne  profits  thereof,  the  jury,  or  arbitra- 
tors, or  justices,  as  the  case  may  be,  shall  assess  the  same 
according  to  what  they  shall  find  to  have  been  the  value  of 
such  lands,  estate,  or  interest,  and  profits,  at  the  time  such 
lands  wei-e  entered  upon  by  the  promoters  of  the  under- 
taking, and  without  regard  to  any  improvements  or  works 
made  in  the  said  lands  by  the  promotei-s  of  the  undertak- ' 
ing,  and  as  though  the  works  had  not  been  constructed. 
Promoters  of      126.  In  addition  to  the  said  purchase  money,  compensa- 
the  under-     tion,  or  satisfaction,  and  before  the  promoters  of  the  under- 
the  costs  of''  taking  shall  become  absolutely  entitled  to  any  such  estate, 
litigation  as  interest,  or  charge,  or  to  have  the  same  merged  or  extin- 
to  sucli  guished  for  their  benefit,  they  shall,  when  the  right  to  any- 

such  estate,  interest,  or  charge  shall  have  been  disputed  by 
the  company,  and  detennined  in  favour  of  the  party  claim- 
ing the  same,  pay  the  full  costs  and  expenses  of  any  pro- 
ceedings at  law  or  in  equity  for  the  determination  or  reco- 
very of  the  same  to  the  parties  with  whom  any  such  litiga- 
tion in  respect  thereof  shall  have  taken  place;  and  such 
costs  and  expenses  shall,  in  case  the  same  shall  be  disputed, 
be  settled  by  the  proper  officer  of  the  court  in  which  such 
litigation  took  place. 

Sale  of  ^^^  ^^'^*^^^  respect  to  lands  acquired  by  the  promoters  of 

superfiuous  the  imdertaking  under  the  provisions  of  this  or  the  special 

Land,       ^ct,  or  any  act  incorporated  therewith,  but  which  shall  not 

be  required  for  the  pui'poses   thereof,  be  it   enacted  as 

follows : 

Lands  not         ^^'^ •  ^'^^'^^^^  the  prescribed  period,  or  if  no  period  be 

wanted  to  be  prescribed  within  ten  yeai-s  after  the  expiration  of  the  time 

lold,  or  in     limited  by  the  special  act  for  the  completion  of  the  works, 

Test  in  own-  the  promoters  of  the  undertaking  shall  absolutely  sell  and 

er»  of  ad-      dispose  of  all  such  superfluous  lands,  and  apply  the  pur- 

land°^  chase  money  arising  from  such  sales  to  the  pui-poses  of  the 

special  act;  and  in  default  thereof  all  such  superfluous  lands 

remaining  unsold  at  the  expiration  of  such  period  shall 

thereupon  vest  in  and  become  the  property  of  the  owners 

of  the  lands  adjoining  thereto,  in  proportion  to  the  extent 

of  their  lands  respectively  adjoining  the  same. 


8  Vict.  c.  18 — Lands  Clauses.  cxlvii 

128.  Before  the  promoters  of  the  undertaking  dispose  of  Lands  to  be 
any  such  superfluous  lands  they  shall,  unless  such  lands  be  °^"''^  t° 
situate  within  a  town,   or  be  lands  built  upon  or  used  for  "andrfrom 
building  purposes,  first  offer  to  sell  the  same  to  the  person  "^^^"^^  ^^^y 
then  entitled  to  the  lands  (if  any)  from  which  the  same  were  n^i?  °tlk'' 
originally  severed;  or  if  such  person  refuse  to  purchase  the  or  toad%tn- 
same,   or  cannot  after  diligent  inquiry  be  found,  then  the  '"s  owners. 
like  offer  shall  be  made  to  the  person  or  to  the  several  persons 
■whoselands  shall  immediately  adjoin  the  lands  so  proposed 

to  be  sold,  such  persons  being  capable  of  enterinf  into  a 
contract  for  the  purchase  of  such  lands ;  and  where  more 
than  one  such  person  shall  be  entitled  to  such  right  of  pre- 
emption such  offer  shall  be  made  to  such  persons  in  succes- 
sion, one  after  another,  in  such  order  as  the  promoters  of 
the  undertaking  shall  think  fit.(e) 

129.  If  any  such  persons  be  desirous  of  purchasing  such  Right  of  pre- 
lands,   then  within  six  weeks  after  such  offer  of  sale  they  f^mption  to 
shall  signify  their  desire  in  that  behalf  to  the  promoters  of  wUhhi'six^ 
the  undertaking,  or  if  they  decline  such  offer,  or  if  for  six  weeks, 
weeks  they  neglect  to  signify  their  desire  to  purchase  such 

lands,  the  right  of  pre-emption  of  everj^  such  person  so  de- 
clining or  neglecting  in  respect  of  the  lands  included  in  such 
offer  shall  cease ;  and  a  declaration  in  writing  made  before 
a  justice  by  some  person  not  interested  in  the  matter  in 
question,  stating  that  such  offer  was  made  and  was  refused, 
or  not  accepted  within  six  weeks  from  the  time  of  making 
the  same,  or  that  the  person  or  all  the  persons  entitled  to 
the  right  of  pre-emption  were  out  of  the  country,  or  could 
not  after  diligent  inquiry  be  found,  or  were  not  capable  of 
entering  into  a  contract  for  the  purchase  of  such  lands,  shall 
in  all  courts  be  sufficient  evidence  of  the  facts  therein  stated. 

130.  If  any  person  entitled  to  such  pre-emption  be  de-  Differences 
sirous  of  purchasing  any  sucli  lands,    and  such  person  and  as  to  price  to 
the  promoters  of  the  undertaking  do  not  agree  as  to  the  arbiter"-"'  ''^' 
price  thereof,  then  such  price  shall  be  ascertained  by  arbi-  tion. 
tration,  and  the  costs  of  such  arbitration  shall  be  in  the  dis- 
cretion of  the  arbitrators. 

131.  Upon  payment  or  tender  to  tlie  promoters  of  the  i.andstobe 
undertaking  of  the  purchase  money  so  agreed  upon  or  de-  j,""^7r!'' '" 

chaners. 
(e)  As  to  effect  of  proviso  giving  right  of  pre-emption  to 
owners  of  adjoining  lands  on  company's  power  of  sale,  see 
Treatise,  pp.  125,  120.  Also  as  to  effect  of  company's  con- 
tracting to  sell  surplus  land  without  first  offering  same  to 
owners  of  adjoining  land,  see  Treatise,  p.  139. 

GG  2 


cxiviii 


Appendix — Statutes. 


Effect  of 
the  word 


termined  as  aforesaid,  they  shall  convey  such  lands  to  the 
purchasers  thereof  by  deed  under  the  common  seal  of  the 
promoters  of  the  undertaking,  if  they  be  a  corporation,  or  if 
not  a  corporation  under  the  hands  and  seals  of  the  promoters 
of  the  undertaking  or  any  two  of  the  directors  or  managers 
thereof  acting  by  the  authority  of  the  body ;  and  a  deed  so 
executed  shall  be  eflPectual  to  vest  the  lands  comprised  therein 
in  the  purchaser  of  such  lands  for  the  estate  which  shall  so 
have  been  purchased  by  him :  and  a  receipt  under  such 
common  seal,  or  under  the  hands  of  two  of  the  directors  or 
managers  of  the  undertaking  as  aforesaid,  shall  be  a  suffi- 
cient discharge  to  the  purchaser  of  any  such  lands  for  the 
purchase  money  in  such  receipt  expressed  to  be  received. 

132.  In  every  conveyance  of  lands  to  be  made  by  the 
promoters  of  the  undertaking  under  this  or  the  special  act 
cMveyances.  ^he  Avord  "  grant  "  shall  operate  as  express  covenants  by  the 
pi'omoters  of  the  imdertaking,  for  themselves  and  their  suc- 
cessors, or  for  themselves,  their  heirs,  executors,  adminis- 
trators, and  assigns,  as  the  case  may  be,  with  the  respective 
grantees  therein  named,  and  the  successors,  heirs,  executors, 
administrators,  and  assigns  of  such  grantees,  according  to  the 
quality  or  nature  of  such  grants,  and  of  the  estate  or  interest 
therein  expressed  to  be  thereby  conveyed,  as  follows,  except 
so  far  as  the  same  shall  be  restrained  or  limited  by  express 
words  contained  in  any  such  conveyance;  (that  is  to  say,; 
A  covenant  that,  notwithstanding  any  act  or  default  done 
by  the  promoters  of  the  undertaking,  thej'  were  at  the 
time  of  the  execution  of  such  conveyance  seised  or  pos- 
sessed of  the  lands  or  premises  thereby  granted  for  an 
indefeasible  estate  of  inheritance  in  fee  simple,  free 
from  all  incumbrances  done  or  occasioned  by  them,  or 
otherwise  for  such   estate  or  interest  as  therein  ex. 
pressed  to  be  thereby  granted,  free  from  incumbrances 
done  or  occasioned  by  them : 
A  covenant  that  the  grantee  of  such  lands,  his  heirs,  suc- 
cessors, executors,  administratoi-s,  and  assigns,  (as  the 
case  may  be,)  shall  quietly  enjoy  the  same  against  the 
promoters  of  the  undertaking,  and  their  successors, 
and  all  other  persons  claiming  under  them,  and  be  in- 
demnified and  saved  harmless  b)'  the  promoters  of  the 
undertaking  and  their  successors  from  all  incumbrances 
created  by  the  promoters  of  the  undertaking : 
A  covenant  for  further  assurance  of  such  lands,  at  the 
expense   of  such  grantee,  his  heirs,  successors,  exe- 
cutors, administrators,  or  assigns  (as  the  case  may  be,) 


8  Vict.  c.  18 — Lands  Clauses.  cxlix 

by  the  promoters  of  the  undertaking,  or  then-  succes- 
sors, and  all  other  persons  claiming  under  them: 
And  all  such  grantees,  and  their  several  successors,  heirs, 
executors,  administrators,  and  assigns  respectively,  accord- 
ing to  their  respective  quality  or  nature,  and  the  estate  or 
interest  in  such  conveyance  expressed  to  be  conveyed,  may 
in  all  actions  brought  by  them  assign  breaches  of  covenants, 
as  they  might  do  if  such  covenants  were  expressly  inserted 
in  such  conveyances. 

133.  And  be  it  enacted,   that  if  the  promoters  of  the  Landtaxand 
undertaking  become  possessed  by  virtue  of  this  or  the  spe-  fo  be  niade 
cial  act,    or  any  act  incorporated  therewith,  of  any  lands  good, 
charged  with  tlie  land  tax,    or  liable  to  be  assessed  to  the 

poor's  rate,  they  shall  from  time  to  time,  until  the  works 
shall  be  completed  and  assessed  to  such  land  tax  or  poors 
rate,  be  liable  to  make  good  the  deficiency  in  the  several 
assessments  for  land  tax  and  poor's  rate  by  reason  of  such 
lands  having  been  taken  or  used  for  the  purposes  of  the 
works,  and  such  deficiency  shall  be  computed  according  to 
the  rental  at  which  such  lands,  with  any  building  thereon, 
were  valued  or  rated  at  the  time  of  the  passing  of  the  sjje- 
cial  act ;  and  on  demand  of  such  deficiency  the  promoters 
of  the  undertaking,  or  their  treasure!-,  shall  pay  all  such  de- 
ficiencies to  the  collector  of  the  said  assessments  respec- 
tively; nevertheless,  if  at  any  time  the  promoters  of  the 
undertaking  think  fit  to  redeem  such  land  tax,  they  may  do 
so  in  accordance  with  the  powers  in  that  behalf  given  by 
the  acts  for  the  redemption  of  the  land  tax. 

134.  And  be  it  enacted,  that  any  summons  or  notice,  or  service  of 
any  writ  or  other  proceeding  at  law  or  in  equity,  requiring  notices  upon 
to  be  served  upon  the  promoters  of  the  undertaking,   may  '^°™pany- 
be  served  by  the  same  being  left  at  or  transmitted  through 

the  post  directed  to  the  principal  office  of  the  promoters  of 
the  undertaking,  or  one  of  the  principal  offices  where  there 
shall  be  more  than  one,  or  being  given  or  transmitted 
through  the  post  directed  to  the  secretary,  or  in  case  there 
be  no  secretary  the  solicitor  of  the  said  promoters.  (_/') 

135.  And  be  it  enacted,  that  if  any  party   shall  have  Tender  of 
committed  any  irregularity,  trespass,  or  other  wrongful  pro-  amends, 
ceeding  in  the  execution  (g)  of  this  or  tlie  special  act,  or  any 

act  incorporated  therewith,  or  by  virtue  of  any  power  or 
authority  thereby  given,  and  if,  before  action  brought  m 

f/)  See  Treatise,  pp.  383,  384. 

(g)  What  acts  to  be  deemed  acts  done  in  execution  of  act, 
c,  see  Treatise,  p.  380. 


cl  Appendix — Statutes. 

respect  thereof,  such  party  make  tender  of  sufficient  amends 
to  the  party  injured,  such  last-mentioned  party  shall  not 
recover  in  any  such  action ;  and  if  no  such  tender  shall  have 
been  made  it  shall  be  lawful  for  the  defendant,  by  leave  of 
the  court  where  such  action  shall  be  pending  at  any  time 
before  issue  joined,  to  pay  into  court  such  sum  of  money 
as  he  shall  think  fit,  and  thereupon  such  proceeding  shall 
be  had  as  in  other  cases  where  defendants  are  allowed  to 
pay  money  into  court. 

Recovery        And  with  respect  to  the  recovery  of  forfeitures,  penal- 
of  Penalties,  ties,  and  costs,  be  it  enacted  as  follows  : 
Penalties  to        136.  Every  penalty  or  forfeiture  imposed  by  this  or  the 
be  snmma-    special  act,  or  by  any  bye  law  made  in  pursuance  thereof, 
ed^efore'^"^   the  recovery  of  which  is  not  otherwise  provided  for,  may 
two  justices,  be  recovered  by  summary  proceeding  before  two  justices  ; 
and  on  complaint  being  made  to  any  justice  he  shall  issue 
a  summons  requiring  the  party  complained  against  to  ap- 
pear before  two  justices  at  a  time  and  place  to  be  named  in 
such  summons  ;  and  every  such  summons  shall  be  served 
on   the  party  offending  either  in  person  or  by  leaving  the 
same   with  some  inmate  at  his  usual  place  of  abode ;  and 
upon  the  appearance  of  the  party  complained  against,  or  in 
his  absence,  after  proof  of  the  due  service  of  such  sum- 
mons, it  shall  be  lawful  for  any  two  justices  to  proceed  to 
the  hearing  of  the  complaint,  and  that  although  no  informa- 
tion in  writing  or  in  print  shall  have  been  exhibited  before 
them ;  and  upon  proof  of  the  offence,  either  by  the  confes- 
sion of  the  party  complained  against,  or  upon  the  oath  of 
one  credible  witness  or  more,  it  shall  be  lawM  for  such 
justices  to  convict  the  offender,  and  upon  such  conviction 
to  adjudge  the  offender  to  pay  the  penalty  or  forfeiture  in- 
curred, as  well  as  such  costs  attending  the  conviction  as 
such  justices  shall  think  fit. 
Penalties  to        ^^^-  ^^'  forthwith  upon  any  such  adjudication  as  afore- 
be  levied  by  said,  the  amount  of  the  penalty  or  forfeiture,  and  of  such 
distress.         costs  as  aforesaid,  be  not  paid,  the  amount  of  such  penalty 
and  costs  shall  be  levied  by  distress,  and  such  justices  or 
either  of  them  shall  issue  their  or  his  warrant  of  distress 
accordingly. 
Distres3,how      138.  Where  in  this  or  the  special  act,  or  any  act  incor- 
to  be  levied,  porated  therewith,  any  sum  of  money,  whether  in  the  na- 
ture of  penalty,  costs,  or  otherwise,  is  directed  to  be  levied 
by  distress,  such  sum  of  money  shall  be  levied  by  distress 
and  sale  of  the  goods  and  chattels  of  the  party  liable  to  pay 
the  same ;  and  the  overplus  arising  from  the  sale  of  such 


8  Vict.  c.  18 — Lands  Clauses.  cli 

goods  and  chattels,  after  satisi'ying  such  sum  of  money  and 
the  expenses  of  the  distress  and  sale,  shall  be  returned,  on 
demand,  to  the  party  whose  goods  shall  have  been  dis- 
trained. 

139.  The  justices  by  whom  any  such  penalty  or  forfeiture  Application 
shall  be  imposed  may,    where  the  application   thereof  is  ot  penalties, 
not  otherwise  provided  for,  award  not  more  than  one  half 
thereof  to  the  informer,  and  shall  award  the  remainder  to 

the  overseers  of  the  poor  of  the  parish  in  which  the  offence 
shall  have  been  committed,  to  be  applied  in  aid  of  the  poor's 
rate  of  such  parish,  or  if  the  place  wherein  the  offence  shall 
have  been  committed  shall  be  extra-parochial,  then  such 
justices  shall  direct  such  remainder  to  be  applied  in  aid  of 
the  poor's  rate  of  such  extra-parochial  place,  or  if  there 
shall  not  be  any  poor's  rate  therein  in  aid  of  the  poor's  rate 
of  any  adjoining  parish  or  district. 

140.  If  any  such  sum  shall  be  payable  by  the  promoters  Dlstreis 
of  the  undertaking,  and  if  suflicient  goods  of  the  said  pro-  ^K'*'"^'  *-^^ 
moters  cannot  be  found  whereon  to  levy  the  same,  it  may, 

if  the  amount  thereof  do  not  exceed  twenty  pounds,  be  re- 
covered by  distress  of  the  goods  of  the  treasurer  of  the  said 
promoters,  and  the  justices  aforesaid,  or  either  of  them,  on 
application,  shall  issue  their  or  his  warrant  accordingly ; 
but  no  sucli  distress  shall  issue  against  the  goods  of  such 
treasurer  unless  seven  daysprevious  notice  in  writing,  stating 
the  amount  so  due,  and  demanding  payment  thereof,  have 
been  given  to  such  treasurer  or  left  at  his  residence ;  and  if 
such  treasurer  pay  any  money  under  such  distress  as  afore- 
said he  may  retain  the  amount  so  paid  by  him,  and  all  costs 
and  expenses  occasioned  thereby,  out  of  any  money  belong- 
ing to  the  promoters  of  the  undertaking  coming  into  his 
custody  or  conti-ol,  or  he  may  sue  them  for  the  same. 

141.  No  distress  levied  by  virtue  of  this  or  the  special  Distress  not 
act,  or  any  act  incorporated  therewith,  shall  be  deemed  un-  ^aiiuif    "' 
lawful,  nor  shall  any  party  making  the  same  be  deemed  a  form, 
trespasser,  on  account  of  any  defect  or  want  of  form  in  the 
summons,  conviction,  warrant  of  distress,  or  other  proceed- 
ing relating  thereto,  nor  shall  such  party  be  deemed  a  tres- 
passer ab  initio  on  account  of  any  irregularity  afterwards 
committed  by  him,  but  all  persons  aggrieved  by  such  defect 

or  irregularity  may  recover  full  satisfaction  for  the  special 
damage  in  an  action  upon  the  case. 

142.  No  person  shall  be  liable  for  the  payment  of  any  Penaltlento 
penalty  or  forfeiture  imposed  by  virtue  of  this  or  the  special  ^'jj^|1^''^[°' 
act,  or  any  act  incorporated  therewith,  for  any  offence  made  n,onth». 


clii  Appendix — Statutes. 

cognizable  before  a  justice,  unless  the  complaint  respecting 

such  offence  shall  have  been  made  before  such  justice  within 

six  months  next  after  the  commission  of  such  offence. 

Penalty  on  14S.  It  shall  be  lawful  for  any  justice  to  summon  any 

witnesses      person  to  appear  before  him  as  a  witness  in  any  matter  in 

making  de-     '^   ,  .    ,  ^'^\         .  ^     ^^    ^  .       .     ,.      .  <  , 

fault.  winch  such  justice  shall  have  jurisdiction  under  the  pro- 

visions of  this  or  the  special  act  at  a  time  and  place  men- 
tioned in  such  summons,  and  to  administer  to  him  an  oath 
to  testify  the  truth  in  such  matter;  and  if  any  person  so 
summoned  shall,  without  reasonable  excuse,  refuse  or  neg- 
lect to  appear  at   the  time  and  place  appointed  for  that 
purpose,  having  been  paid  or  tendered  a  reasonable  sum  for 
his  expenses,  or  if  any  person  appearing  shall  refuse  to  be 
examined  upon  oath  or  to  give  evidence  before  such  justice, 
every  such  person  shall  forfeit  a  sum  not  exceeding  five 
pounds  for  every  such  offence. 
Form  of  con-      i44_  The  justices  before  whom  any  person  shall  be  con- 
victed of  any  offence  against  this  or  the  special  act,  or  any 
act  incorporated  therewith,  may  cause  the  con^'iction  to  be 
drawn  up  according  to  the  form  in  the  schedule  (C.)to  this 
act  annexed. 
Proceedings       145.  No  proceeding  in  pursuance  of  this  or  the  special 
"°*  'h  d^f      ^^^'  °^  ^"y  ^^^  incorporated  therewith,  shall  be  quashed  or 
want  of        vacated  for  want  of  form,  nor  shall  the  same  be  removed  by 
form.  certiorai'i  or  otherM'ise  into  any  of  the  superior  courts,  (i) 

Parties  I'iS.  If  any  party  shall  feel  aggrieved  by  any  detennin- 

allowed  to     ation   or  adjudication  of  any  justice  with  respect  to  any 
quarter*ses-  P^^^^^^J  °^'  forfeiture  under  the  provisions  of  this  or  the 
sions  on         special  act,  or  any  act  incorporated  therewith,  such  party 
giving  secu-  j^-,jjy  appeal  to  the  general  quarter  sessions  for  the  county  or 
place  in  which  the  cause  of  appeal  shall  have  arisen ;  but 
no  such  appeal  shall  be  entertained  unless  it  be  made  within 
four  months  next  after  the  making  of  such  determination 
or  adjudication,  nor  unless  ten  days  notice  in  writing  of 
such  appeal,  stating  the  nature  and  grounds  thereof,  be  given 
to  the  party  against  whom  the  appeal  shall  be  brought,  nor 
unless  the  appellant  forthwith  after  such  notice  enter  into 
recognizances,  with  two  sufficient  sureties,  before  a  justice, 
conditioned  duly  to  pi'osecute  such  appeal,  and  to  abide  the 
order  of  the  court  thereon. 
Court  to  147.  At  the  quarter  sessions  for  which  such  notice  shall 

make  such     be  given  the  court  shall  proceed  to  hear  and  determine  the 
order  as  they  ^ 

think  rea- 
sonable. («)  As  to  the  effect  of  taking  away  certiorari,  see  Treatiie, 
p.  402,  et  seq. 


8  Vict.  c.  18— Lands  Clauses.  cliii 

appeal  in  a  summary  way,  or  tiiey  may,  if  they  think  fit, 
adjourn  it  to  the  following  sessions,  and  upon  the  hearing  of 
sucli  appeal  the  court  may,  if  they  think  fit,  mitigate  any 
penalty  or  forfeiture,  or  they  may  confirm  or  quash  the  ad- 
judication, and  order  any  money  paid  by  the  appellant,  or 
levied  by  distress  upon  his  goods,  to  be  returned  to  him, 
and  may  also  order  such  further  satisfaction  to  be  made  to 
the  party  injured  as  they  may  judge  reasonable  ;  and  they 
may  make  such  order  concerning  the  costs,  both  of  the  ad- 
judication and  of  the  appeal,  as  they  may  think  reasonable. 

148.  Provided  always,  and  be  it  enacted,  that  notwith- Receiver  of 
standing  anything  herein  or  in  the  special  act,  or  any  act  the  metro- 
incorporated  therewith,  contained,  everypenalty  or  forfeiture  uce  dTst'rict 
imposed  by  this  or  the  special  act  or  any  act  incorporated  to  receive 
therewith,  or  by  any  bye  law  in  pursuance  thereof,  in  respect  f^°''"'^* 
of  any  offence  which  shall  take  place  within  the  metropolitan  witiiiVhis 
police  district,  shall  be  recovered,  enforced,  accounted  for,  district. 
and,   except  where    the  application  thereof   is  otherwise 
specially  provided  for,  shall  be  paid  to  the  receiver  of  the 
metropolitan  police  district,  and  shall  be  applied  in  the  same 
manner  as  penalties  or  forfeitures,  other  than  fines  upon 
drunken  persons,  or  upon  constables  for  misconduct,  or  for 
assaults  upon  police  constables,  are  directed  to  be  recovered, 
enforced,  accounted  foi-,  paid,  and  applied  by  an  act  passed 

in  the  third  year  of  the  reign  of  her  present  Majesty,  in- 
tituled "  An  Act  for  regulating  the  Police  Courts  in  the  2  &  3  Vict. 
Metropolis,"  and  every  order  or  conviction  of  any  of  the  "^^ '  * 
police  magisti'ates  in  respect  of  any  such  forfeiture  or 
penalty  shall  be  subject  to  the  like  appeal,  and  upon  the 
same  terms  as  is  provided  in  respect  of  any  order  or  convic- 
tion of  any  of  the  said  police  magistrates  by  the  said  last- 
mentioned  act ;  and  every  magistrate  by  whom  any  order 
or  conviction  shall  have  been  made  shall  have  tlie  same 
power  of  binding  over  the  witnesses  who  shall  have  been 
examined,  and  such  witnesses  shall  be  entitled  to  the  same 
allowance  of  expenses  as  he  or  they  would  have  had  or  been 
entitled  to  in  case  the  order,  conviction,  and  a])peal  had 
been  made  in  pursuance  of  the  provisions  of  tlie  said  last- 
mentioned  act. 

149.  And  be  it  enacted,  that  any  person  who  upon  any  Persons    ^ 
examination  upon  oath  under  die  provisions  of  this  or  the  ^J.i),"^^^^  "" 
special  act,  or  any  act  incorporated  tlierewitli,  sliall  wilfully  nabie  to 
and  corruptly  give  false  evidence,   sliall  be   liable  to  tlie  P^J'."j^''"' "'" 
penalties  of  wilful  and  corrupt  ])erjury. 

And  with  respect  to  the  provision  to  be  made  for  affording  ""'""^^i 
access  to  the  special  act  by  all  parties  interested,  be  it  '"  -^^J"" 
enacted  as  follows  : — 

G  G  5 


7  W.  4  &  1 
Vict.  c.  83. 


Penalty  on 
company 
failing  to 
keep  or 
deposit. 

Act  not  to 
extend  to 
Scotland. 
Act  may  be 
amended 
this  session. 


Appendix — Statutes. 

150.  The  company  shall,  at  all  times  after  the  expiration 
of  six  months  after  the  passing  of  the  special  act,  keep  iu 
their  principal  office  of  business  a  copy  of  the  special  act, 
printed  by  the  printers  to  her  Majesty,  or  some  of  them  ; 
and  where  the  undertaking  shall  be  a  railway,  canal,  or 
other  like  undertaking,  the  works  of  which  shall  not  be  con- 
fined to  one  town  or  place,  shall  also  within  the  space  of 
such  six  months  deposit  in  the  office  of  each  of  the  clerks  of 
the  peace  of  the  several  counties  into  which  the  works  shall 
extend  a  copy  of  such  special  act  so  printed  as  aforesaid ; 
and  the  said  clerks  of  the  peace  shall  receive,  and  they  and 
the  company  respectively  shall  retain,  the  said  copies  of  the 
special  act,  and  shall  permit  all  persons  interested  to  inspect 
the  same,  and  make  extracts  or  copies  therefrom,  in  the  Uke 
manner,  and  upon  the  like  terms,  and  under  the  like  penalty 
for  default,  as  is  provided  in  the  case  of  certain  plans  and 
sections  by  an  act  passed  iu  the  first  year  of  the  reign  of 
her  present  Majesty,  intituled  "  An  Act  to  compel  Clerks  of 
the  Peace  for  Counties  and  other  Persons  to  take  the  Cus- 
tody of  such  Documents  as  shall  be  directed  to  be  deposited 
with  them  under  the  Standing  Orders  of  either  House  of 
Parliament." 

151.  If  the  company  shall  fail  to  keep  or  deposit,  as 
herein-before  mentioned,  any  of  the  said  copies  of  the 
special  act,  they  shall  forfeit  twenty  pounds  for  every  such 
offence,  and  also  live  pounds  for  every  daj'  afterwards  during 
which  such  copy  shall  be  not  so  kept  or  deposited. 

152.  And  be  it  enacted,  that  this  act  shall  not  extend  to 
Scotland. 

153.  And  be  it  enacted,  that  this  act  may  be  amended 
or  repealed  by  any  act  to  be  passed  in  the  present  session  of 
parliament. 


SCHEDULES  referred  to  in  the  foregoing  Act. 


Schedule  (A.) 

Form  of  Conveyance. 

I  ,  of        ,  in  consideration  of  the  sum  of  paid  to 

me  [or,  as  the  case  may  be,  into  the  bank  of  England  [or  bank  of 
Ireland],  in  the  name  and  with  the  privity  of  the  accountant 
general  of  the  Couit  of  Chancery,  ex- parte  "  the  promoters  of 


S  Vict.  c.  18 — Lands  Clauses.  civ 

the  undertaking  "  [naming  them],  or  to  A.  B.  of  and  C.  D. 
of  two  trustees  appointed  to  receive  the  same],  pursuant  to 
the  [here  name  the  special  act],hy  the  [here  name  the  company  or 
other  promoters  of  the  un(ieTtaking'\,incorpora.ted[or  constituted} 
by  the  said  act,  do  hereby  convey  to  the  said  company  [or  other 
description]  their  successors  and  assigns,  all  [describing  the 
premises  to  be  conveyed],  together  with  all  ways,  rights,  and 
appurtenances  thereto  belonging,  and  all  such  estate,  right,  title, 
and  interest  in  and  to  the  same  as  1  am  or  shall  become  seised  or 
possessed  of,  or  am  by  the  said  act  empowered  to  convey,  to  hold 
the  premises  to  the  said  company  [or  other  description],  their 
successors  and  assigns,  for  ever,  according  to  the  true  intent  and 
meaning  of  the  said  act.  In  witness  whereof  I  have  hereunto 
set  my  hand  and  seal,  the  day  of  in  the  year  of  our 

Lord 


Schedule  (B.) 

Form  of  Conveyance  on   Chief  Rent. 

I  ,  of  ,  in  consideration  of  the  rent  charge  to  be  paid 
to  me,  my  heirs  and  assigns,  as  hereinafter  mentioned,  by  "  the 
promoters  of  the  undertaking"  [naming  ?Aew],  incorporated  [or 
constituted]  by  virtue  of  the  [here  name  the  special  act],  do 
hereby  convey  to  the  said  company  [or  other  description],  their 
successors  and  assigns,  all  [describing  the  premises  to  he  con- 
veyed], together  with  all  ways,  rights,  and  appurtenances  there- 
unto belonging, andall  my  estate,  right,  title,  and  interest  in  and 
to  the  same  and  every  part  thereof,  to  hold  the  said  premises  to 
the  said  company  [or  other  description],  their  successors  and 
assigns,  for  ever,  according  to  the  true  intent  and  meaning  of  the 
said  act,  they  the  said  company  [or  other  description],  their  suc- 
cessors and  assigns,  yielding  and  paying  unto  me,  my  heirs  and 
assigns,  one  clear  yearly  rent  of  ,  by  equal  quarterly  [or 

half-yearly,  as  agreed  upon],  portions,  henceforth,  on  the 
[stating  the  days]  clear  of  all  taxes  and  deductions.  In  wit- 
ness whereof  I  have  hereunto  set  my  hand  and  seal,  the  day 
of        ,  in  the  year  of  our  Lord 


Schedule  (C.) 

Form  of  Conviction. 
to  wit. 
Be  it  remembered,  that  on  the  day  of  in  the  year 

of  our  Lord  A.  B.  is  convicted  before  us  C,  D.,  two  of 

her  Majesty's  justices  of  the  peace  for  the  county  of  [here 

describe  the  offence  generally,  and  ihe  time  and  place  when  and 
where  committed],  contrary  to  the  ['lere  name  the  special  act]. 
Given  under  our  hands  and  seals,  the  day  and  year  first  above 
■written.  ^-i  ^' 


clvi  Appendix — Statutes. 


8  Vict.  c.  20. 

An  Act  for  consolidating  in  One  Act  certain  Provi- 
sions usually  inserted  in  Acts  authorizing  the  making 
of  Railways.  [8t,h  May,  1845.] 

Whereas  it  is  expedient  to  comprise  in  one  general  act 
sundry  provisions  usually  introduced  into  acts  of  parliament 
authorizing  the  construction  of  i-ailways,  and  that  as  well 
for  the  purpose  of  avoiding  the  necessity  of  repeating  such 
provisions  in  each  of  the  several  acts  relating  to  such  under- 
takings as  for  ensuring  gi-eater  uniformity  in  the  provisions 
themselves :  and  whereas  a  bill  is  now  pending  in  parlia- 
ment, intituled  "  An  Act  for  consolidating  in  One  Act  cer- 
tain Provisions  usually  inserted  in  Acts  authorizing  the 
taking  of  Lands  for  Undertakings  of  a  public  Nature,"  and 
which  is  intended  to  be  called  "  The  Lands  Clauses  Con- 
solidation Act,  1S45  :  may  it  therefore  please  your  Majesty 
that  it  may  be  enacted,  and  be  it  enacted  by  the  Queen's 
most  excellent  majesty,  by  and  with  the  advice  and  consent 
of  the  lords  spiritual  and  temporal,  and  commons,  in  this 
present  parliament  assembled,  and  by  the  authority  of  the 
Operation  of  same,  that  this  act  shall  apply  to  every  railway  which  shall 
this  act  con-    ^  ^^^  which  shall  hereafter  be  passed  be  authorized  to 

fined  to  fiiture     -'        -  ,  i    i  ■  i    n  i      •  t      •  i  , 

railways.         be  constructed,  and  this  act  shall  be  mcorporated  with  such 

act ;  and  all  the  clauses  and  provisions  of  this  act,  save  so 
far  as  they  shall  be  expressly  varied  or  excepted  by  any  such 
act,  shall  apply  to  the  undertaking  authorized  thereby,  so 
far  as  the  same  shall  be  applicable  to  such  undertaking, 
and  shall,  as  well  as  the  clauses  and  provisions  of  every 
other  act  which  shall  be  incoi-porated  with  such  act,  form 
part  of  such  act,  and  be  construed  together  therewith  as 
forming  one  act. 
Interpreta-  And  with  respect  to  the  construction  of  this  act  and  of 

tions  m  this    Qji^gj.  ^^ts  to  be  incorporated  therewith,  be  it  enacted  as 

follows : 

"  special  2.  The  expression  "  the  special  act,"  used  in  this  act, 

act ;"  shall  be  construed  to  mean  any  act  which  shall  be  hereafter 

passed  authorizing  the  construction  of  a  railway,  and  with 

which  this  act  shall  be  so  incorporated  as  aforesaid ;  and 

"  pre-  the  word  "  prescribed,"  used  in  this  act  in  reference  to  any 

scribed ;"        matter  herein   stated,  shall  be  construed  to  refer  to  such 

matter  as  the  same  shall  be  prescribed  or  provided  for  in 


J 


8  Vict.  c.  20— Railways  Clauses.  clvii 

the  special  act ;  and  the  sentence  in  which  such  word  shall 
occur  shall  be  construed  as  if,  instead  of  the  word  "  pre- 
scribed," the  expression  "  prescribed  for  that  purpose  in 
the  special  act"  had  been  used;  and  the  expression  "  the  "  «l>e  lands ;" 
lands"  shall  mean  the  lands  which  shall  by  the  special  act 
be  authorized  to  be  taken  or  used  for  the  purposes  thereof- 
and  the  expression  "  the  undertaking"  shall  mean  the  rail-  "  the  under- 
way and  works,  of  whatever  description,  by  the  special  act  'aiding-" 
authorized  to  be  executed. 

3.  The  following  words  and  expressions,  both  in  this  and  Interprcta- 
the  special  act,  shall  have  the  meanings  hereby  assigned  to  ''°^' }°  ""'^ 
them,  unless  there  be  something  in  the  subject  or  context  cfai  aef  ;*'"'" 
repugnant  to  such  construction ;  (that  is  to  say,) 

Words  importing  the  singular  number  only  shall  include  Number ; 
the  plural  number;  and  words  importing  the  plural 
number  only  shall  include  also  the  singular  number : 
Words  importing  the  masculine  gender  only  shall  include  Gender; 

females  : 
The  word  "lands"  shall  include  messuages,  lands,  tene-  "  Lands;" 

nients,  and  hereditaments  of  any  tenure  : 
The   word    "  lease"    shall   include  an  agreement  for  a  "  Lease;" 

lease  : 
The  word  "  toll"  shall  include  any  rate  or  charge  or  other  "  Toll;" 
payment  payable  under  the  special  act  for  any  passen- 
gei",    animal,    carriage,   goods,   merchandize,   articles, 
matters,  or  things  conveyed  on  the  railway  : 
The  word  "  goods"  shall  include  things  of  every  kind  con-  "  Goods ;" 

veyed  upon  the  railway  : 
The  word  "  month"  shall  mean  calendar  month  :  "  Month  ;" 

The  expression  "superior  courts"  shall  mean  her  Ma- "Superior 
jesty's  Superior  Courts  of  Record  at  Westminster  or  "=""''•5;" 
Dublin,  as  the  case  may  require  : 
The  word  "oath"  shall  include  affirmation  in  the  case  of"  Oaih;" 
quakers,  or  other  declaration  lawfully  substituted  for 
an  oath  in  the  case  of  any  other  persons  exempted  by 
law  from  the  necessity  of  taking  an  oath  : 
The  word  "  county"  shall  include  any  riding  or  other  like  "  Couiiiy ;" 
division  of  a  county,  and  shall  also  include  county  of  a 
city  or  county  of  a  town  :  i    •  •-  •• 

The  word  "sheriff"  shall  include  undersheriff  or  other  """""*"" ' 
legally  competent  deputy ;  and  where  any  matter  in 
relation  to  any  lands  is  required  to  be  done  by  any 
sheriff  or  clerk  of  the  peace,  the  expression  "  tlie  she- 
riff," or  the  expression  "  the  clerk  of  the  peace,"  shall  '' '.''i;/'''''',"' 
m  such  case  be  construed  to  mean  the  shenft  or  tlic 


;lviii  Aj^pendix — Statutes. 

clerk  of  the  peace  of  the  county,  city,  borough,  liberty, 
cinque  port,  or  place  where  such  lands  shall  be  situate  ; 
and  if  the  lands  in  question,  being  the  propertj'  of  one 
and  the  same  party,  be  situate  not  wholly  in  one 
county,  city,  borough,  liberty,  cinque  port  or  place,  the 
same  expression  shall  be  construed  to  mean  the  sheriff 
or  clerk  of  the  peace  of  any  county,  city,  borough, 
liberty,  cinque  port,  or  place  where  any  part  of  such 
lands  shall  be  situate  : 
'  Justice ;"  The  word  "  justice"  shall  mean  justice  of  the  peace  act- 

ing for  the  county,  city,  borough,  liberty,  cinque  poit, 
or  place  where  the  matter  requiring  the  cognizance  of 
any  such  justice  shall  arise,  and  who  shall  not  be  in- 
terested in  the  matter ;  and  where  such  matter  shall 
arise  in  respect  of  lands,  being  the  property  of  one  and 
the  same  party,  situate  not  wholly  in  any  one  countj', 
city,  borough,  liberty,  cinque  port  or  place,  shall  mean 
a  justice  acting  for  the  count)^,  citj',  borough,  liberty, 
cinque  port,  or  place  where  any  part  of  such  lands  shall 
be  situate,  and  who  shall  not  be  interested  in  such 
matter ;  and  where  any  matter  shall  be  authorized  or 
required  to  be  done  by  two  justices,  the  expression 
^Twojos-  "  two  justices"  shall  be  understood  to  mean  two  jus- 

"^**'  tices  assembled  and  acting  togetlier  : 

'Owner;"  Where  under  the  provisions  of  this  or  the  special  act  any 

notice  shall  be  required  to  be  given  to  tlie  owner  of  any 
lands,  or  where  any  act  shall  be  authorized  or  required 
to  be  done  with  the  consent  of  any  such  owner,  the 
word  "  owner"  shall  be  understood  to  mean  any  per- 
son or  corporation  who,  under  the  provisions  of  this  or 
the  special  act,  or  any  act  incorporated  therewith, 
would  be  enabled  to  sell  and  convey  lands  to  the  com- 
pany : 
'the  com-  The  expression  "the  company"  shall  mean  the  company 

3any ;"  q^  party  which  shall  be  authorized  by  the  special  act  to 

construct  the  railway  : 
'  the  rail-  The  expression  "  the  railway"  shall  mean  the  railway  and 

"'y''  works  by  the  special  act  authorized  to  be  constructed: 

«  Board  of  The  expression  "  the  board  of  trade"  shall  mean  the  lords 

Tade;"  of  the  committee  of  her  Majesty's  Privy  Council  aj)- 

pointed  for  trade  and  foreign  plantations: 
'  the  bank;"      The  expression  "  the  bank"  shall  mean  the  Bank  of  Eng- 
land, where  the  same  shall  relate  to  monies  to  be  paid 
or  deposited  in  respect  of  lands  situate  in  England ;  and 
shall  mean  the  Bank  of  Ireland  where  the  same  shall 


8  Vict.  c.  20 — Railways  Clauses.  clix 

relate  to  monies  to  be  paid  or  deposited  in  respect  of 
lands  situate  in  Ireland : 

The  expression  "  turnpike  road"  shall,  when  applied  to  "  Turnpike 
any  road  in  Ireland,  include  any  road  upon  which  her  T*"''!'."  '■■*" 
Majesty's  mails  are   or  shall  be  carried  in  mail  car-  ^"  ' 
riages;  or  such  other  roads  as  the  commissioners  of 
public  works  in  Ireland  shall  consider  to  require  arches 
of  greater  width  or  height  than  by  this  act  is  requii-ed 
for  public  carriage  roads : 

The  expression  "  surveyor,"  applied  to  a  road  or  high-  "  Surveyor," 
way,  shall,  as  to  railways  in  Ireland,  include  the  countv  ^''^'aad  ; 
surveyor : 

The  expression  "overseers  of  the  poor,"  when  applied  to  "Overseers 
Ireland,  shall  include  the  poor  law  guardians  of  the  ,! 'i*"^  poor," 
electoral  division  and  the  clerk  of  the  guardians  of  the 
union  through  which  such  railway  may  pass : 

4.  And  be  it  enacted,  that  in  citing  this  act  in  other  acts  Short  title  of 
of  parliament  and  in  legal  instruments,  it  shall  be  sufficient  ''"'  ^*^'" 

to  use  the  expression   "  the  Railways  Clauses  Consolidation 
Act,  1845." 

5.  And  whereas  it  may  be  convenient,  in  some  cases,  to  Form  in 
incorporate  with  acts  hereafter  to  be  passed  some  ijortion  "'"<=''  P""^: 

i^,.,  ..  ni-  1-1  I'  '  1     lions  of  this 

only  01  the  provisions  ot  this  act ;  be  it  therefore  enacted,  act  may  be 
that  for  the  purpose  of  making  any  such  incorporation,  it  incorporated 
shall  be  sufficient  in  any  such  act  to  enact  tliat  the  clauses  " 
of  this  act  with  respect  to  the  matter  so  proposed  to  be  in- 
corporated (describing  such  matter  as  it  is  described  in  this 
act,  in  the  words  introductory  to  the  enactment  with  respect 
to  such  matter,)  shall  be  incorporated  with  such  act,  and 
thei-eupon  all  the  clauses  and  provisions  of  this  act  with  re- 
spect to  the  matter  so  incorporated  shall,  save  so  far  as  they 
shall  be  expressl}'  varied  or  excepted  by  such  act,  fonn  part 
of  such  act,  and  such  act  shall  be  construed  as  if  the  sub- 
stance of  such  clauses  and  provisions  were  set  forth  therein 
■with  reference  to  the  matter  to  which  such  act  shall  relate. 

And  with  respect  to  the  construction  («)  of  the  railway    Cnnslruc- 
and  the  works  connected  therewith,  be  it  enacted  as  follows:  tion  nJ'Rail- 

6.  In  exercising  the  power  given  to  the  company  by  the  way. 
special  act,  to  construct  the  railway,  and  to  take  lands  for  J^^^g  consimc- 
that  purpose,  the  company  shall  be  subject  to  the  provi-  lion  «( lUe  ^^^ 
sions  and  restrictions  contained  in  this  act  and  in  the  said  ['',[''j,!l.\  ,„  ,1,^. 
Lands  Clauses  Consolidation  Act;  and  the  company  shall  provihi..n»  oi 
make  to  the  owners  and  occupiers  of  and  all  other  parties  "•''  *='  *'"' 

(a)  See  Treat,  ante,  p.  296. 


Appendix — Statutes. 

s  interested  in  any  lands  taken  or  used  for  the  pui-poses  of 
lauses  Con- the  railway,  or  injuriously  affected  by  the  construction 
Act/'"*"  thereof,  full  compensation  for  the  value  of  the  lands  so 
taken  or  used,  and  for  all  damage  sustained  by  such  o\vners, 
occupiers,  and  other  parties,  by  reason  of  the  exercise,  as 
regards  such  lands,  of  the  powers  by  this  or  the  special  act, 
or  any  act  incorporated  therewith,  vested  in  the  company; 
and,  except  where  otherwise  provided  by  this  or  the  spe- 
cial act,  the  amount  of  such  compensation  shall  be  ascer- 
tained and  determined  in  the  manner  provided  by  the  said 
Lands  Clauses  Consolidation  Act  for  determining  ques- 
tions of  compensation  with  I'egard  to  lands  purchased  or 
taken  under  the  pro\'isions  thereof;  and  all  the  provisions 
of  the  said  last-mentioned  act  shall  be  applicable  to  de- 
termining the  amount  of  any  such  compensation,  and  to 
enforcing  the  payment  or  other  satisfaction  thereof. 
Errors  and  "<  •  If  ^"^Y  omission,  mis-statement,  or  erroneous  descrip- 

oinissions  in  tiou  shall  have  been  made  of  any  lands,  or  of  the  owners, 
correc'ed'^  lessees,  or  occupiers  of  any  lands,  described  on  the  plans 
or  books  of  reference  mentioned  in  the  special  act,  or  in 
the  schedule  to  the  special  act,  it  shall  be  lawful  for  the 
company,  after  giving  ten  days  notice  to  the  owners  of  the 
lands  affected  by  such  proposed  correction,  to  apply  to 
two  justices  for  the  correction  thereof;  and  if  it  shall  ap- 
pear to  such  justices  that  such  omission,  mis-statement,  or 
erroneous  description  arose  from  mistake,  they  shall  certify 
the  same  accordingly,  and  thej'  shall  in  such  certificate 
state  the  particulars  of  any  such  omission,  and  in  what 
respect  any  such  matter  shall  have  been  mis-stated  or 
erroneously  described;  and  such  certificate  shall  be  de- 
posited with  the  clei'ks  of  the  peace  of  the  several  counties 
in  which  the  lands  affected  thereby  shall  be  situate,  and 
shall  also  be  deposited  with  the  parish  clerks  of  the  several 
parishes  in  England,  and  with  tlie  postmasters  of  the  post 
towns  in  or  nearest  to  such  parishes  in  Ireland,  in  which 
the  lands  affected  thereby  shall  be  situate ;  and  such  cer- 
tificate shall  be  kept  by  such  clerks  of  the  peace,  parish 
clerks,  and  postmasters  respectively  along  with  the  other 
documents  to  which  they  relate;  and  thereupon  such  plan, 
book  of  reference,  or  schedule  shall  be  deemed  to  be  cor- 
rected according  to  such  certificate  ;  and  it  shall  be  lawful 
for  tlie  company  to  make  the  works  in  accordance  with 
such  certificate.  («) 

(a)  As  to  effect,  &c.  of  certificate,   under  prior   acts,  see 
Treatise,  p.  76. 


8  Vict.  c.  2Q— Railways  Clauses.  clxi 

8.  It  shall  not  be  lawful  for  the  company  to  proceed  in  Works  not  to 
the  execution  of  the  railway,  unless  they  shall  have  pre-  '"'  proceeded 
vipusly  to  the  commencement  of  such  work  deposited  ^i'nVof'all 
■with  the  clerks  of  the  peace  of  the  several  counties  in  or  alierationsau- 
through  which  the  railway  is  intended  to  pass  a  plan  and  """'i^^''  ^v 
section  of  all  such  alterations  from  the  original  plan  and  UaveT-en'de- 
section  as  shall  have  been  approved  of  by  parliament,  on  pos'ted. 

the  same  scale  and  containing  the  same  particulars  as  the 
original  plan  and  section  of  the  railway,  and  shall  also 
have  deposited  with  the  clerks  of  the  several  parishes  in 
England,  and  the  postmasters  of  the  post  towns  in  or 
nearest  to  such  parishes  in  Ireland,  in  or  through  which 
such  alterations  shall  have  been  authorized  to  be  made, 
copies  or  extracts  of  or  from  such  plans  and  sections  as 
shall  relate  to  such  parishes  respectively. 

9.  The  said  clerks  of  the  peace,  parish  clerks,  and  post-  Clerks  of  the 
masters  shall  receive  the  said  plans  and  sections  of  altera-  P<^='<=.^'  *"=• '» 
tions,  and  copies  and  extracts  thereof  respectively,  and  of  alterations, 
shall  retain  the  same,  as  well  as  the  said  original  plans  a°<'  a"ow  in- 
and  sections,  and  shall  permit  all  persons  interested  to  'P^*^"""- 
inspect  any  of  the  documents  aforesaid,  and  to  make  copies 

and  extracts  of  and  from  the  same,  in  the  like  manner,  and 
upon  the  like  terms,  and  under  the  like  penalty  for  de- 
fault, as  is  provided  in  the  case  of  the  original  plans  and 
sections  by  an  act  passed  in  the  first  year  of  the  reign  of 
her  present  majesty,  intituled  "  An  Act  to  compel  Clerks  7  will.  4  &  1 
of  the  Peace  for  Counties  and  other  Persons  to  take  the  Vict.  c.  83. 
Custody  of  such  Documents  as  shall  be  directed  to  be  de- 
posited with  them  under  the  Standing  Orders  of  either 
House  of  Parliament." 

10.  True  copies  of  the  said  plans  and  books  of  reference,  Copies  of 
or  of  any  alteration  or  con-ection  thereof,  or  extract  there-  ^If  "'"idtnce" 
from,  certified  by  any  such  clerk  of  the  peace,  which  certifi- 
cate such  clerk  of  the  peace  shall  give  to  all  parties  inte- 
rested, when   required,  shall  be  received  in  all  courts  of 

justice  or  elsewhere  as  evidence  of  the  contents  thereof. 

11.  In  making  the  railway  it  shall  not  be  lawful  for  the  Limiting  dc- 
company  to  deviate  from  the  levels  of  the  railway,  as  re- ^j_'J['»"|[™™ 
ferred  to  the  common  datum  line  described  in  the  section  describe.!  ,m 
approved  of  by  parliament,  and  as  marked  on  the  same,  to  "cctions,  &c. 
any  extent  exceeding  in  anyplace  five  (b)  feet,  or,  in  passing 
through  a  town,  village,  street,  or  land  continuously  built 

(h)  As  to  operation  of  this  provision  see  case  of  Cainbriflgc 
and  Lincoln  Railway,  post,  Report  of  Proceedings  of  Commillce 
on  Group  (X),  App.  II. 


clxii  Apjiendix — Statutes^ 

upon,  two  feet,  without  the  pre\'ious  consent  m  writing  of 
the  owners  and  occupiers  of  the  land  in  which  such  devi- 
ation is  intended  to  be  made;  or  in  case  any  street  or 
pubhc  highway  shall  be  affected  by  such  deviation,  then 
the  same  shall  not  be  made  without  the  like  consent  of  the 
trustees  or  commissioners  having  the  control  of  such  street 
or  public  highway,  or,  if  there  be  no  such  trustees  or  com- 
missioners, without  the  like  consent  of  two  or  more  justices 
of  the  peace  in  petty  sessions  assembled  for  that  purpose, 
and  acting  for  the  district  in  which  such  street  or  public 
highway  may  be  situated,  or  without  the  like  consent  of 
the  commissioners  for  any  public  sewers,  or  the  proprietors 
of  any  canal,  navigation,  gas  works,  or  waterworks  affected 
Proviso.  by  such  deviation  :  provided  always,  that  it  shall  be  lawful 

for  the  company  to  deviate  from  the  said  levels  to  a  further 
extent  without  such  consent  as  aforesaid,  by  lowering  solid 
embankments  or  viaducts,  provided  that  the  requisite 
height  of  headway  as  prescribed  by  act  of  parliament  be 
left  for  roads,  streets,  or  canals  passing  under  the  same : 
Proviso.  provided  also,    that   notice  of  every   petty  sessions  to  be 

holden  for  the  purpose  of  obtaining  such  consent  of  two 
justices  as  is   hereinbefore    required  shall,  fourteen    days 
previous  to  the  holding  of  such  petty  sessions,  be  given  in 
some   newspaper    circulating  in   the  county,  and  also  be 
affixed  upon  the  door  of  the  parish  church  in  which  such 
deviation  or  alteration  is  intended  to  be  made,  or  if  there 
be  no  such  church,  some  other  place  to  which  notices  are 
usually  affixed. 
Publicuotice       12.  Before  it  shall  be  lawful  for  the  company  to  make 
prev^ioasTo     ^"y  greater  deviation  from  the  level  than  five  feet,  or,  in 
making  any  town,  village,  street,  or  land  continuously  built  upon, 

greater  devia-  two  feet,  after  having  obtained  such  consent  as  aforesaid, 
it  shall  be  incumbent  on  the   company  to  give  notice  of 
such  intended   deviation  by  pubhc  advertisement,  inserted 
once  at  least  in  two  newspapers,  or  twice  at  least  in  one 
newspaper,    circulating   in    the   district  or  neighbourhood 
where  such  deviation  is  intended  to  be  made,  three  weeks 
Power  to  the  at  least  before  commencing  to  make  such  deviation ;  and 
owners  of  ad-  it  shall  be  lawful  for  the  owner  of  any  lauds  prejudicially 
to  appeaHo^  affected  thereby,  at  any  time  before  the  commencement  of 
the  Board  of   the  making  of  such   deviation,  to  apply  to  the  board  of 
snch  devl^'"''  ti^^de,  after  giving  ten  days  notice  to  the  company,  to  de- 
tions.  cide  whether,  having  regard  to  the  interests   of  such  ap- 

plicants, such  proposed  deviation  is  pi-oper  to  be  made: 
and  it  shall  be  lawful  for  the  Board  of  Trade,  if  they  think 
fit,  to  decide  such  question  accordingly,  and  by  their  cer- 
tificate in  writing   either  to  disallow  the  making  of  such 


8  Vict.  c.  20 — Railways  Clauses.  clxiii 

deviation  or  to  authorize  the  making  thereof,  either  siniplv 
or  with  any  such  modification  as  shall  seem  proper  to  the 
Board  of  Trade ;  and  after  any  such  certificate  shall  have 
been  given  by  the  Board  of  Trade,  it  shall  not  be  lawful  for 
the  company  to  make  such  deviation,  except  in  conformity 
with  such  certificate. 

13.  Where  in  any  place  it  is  intended  to  carry  the  rail-  Arches,  tun- 
way  on  an  arch  or  arches  or  other  viaduct,  as  marked  on  jj''*'  ^i*^*  '** 
the  said  plan  or  section,  the  same  shall  be  made  accord-  marke/on' 
ingly;    and  where  a  tunnel  is  marked  on  the  said  plan  or  ''^posited 
section  as  intended  to  be  made  at  any  place,  the  same  shall  ^  ^°^' 

be  made  accordingly,  unless  the  owners,  lessees,  and  occu- 
piers of  the  land  in  which  such  tunnel  is  intended  to  be 
made  shall  consent  that  the  same  shall  not  be  so  made. 

14.  It  shall  not  be  lawful  for  the  company  to  deviate  Limiting  de- 
from  or  alter  the  gradients,  curves,  tunnels,  or  other  engi-  pJaJiiem/'^'"" 
neering  works  described  in  the  said  plan  or  section,  except  curves,  &c. 
within  the  following  limits,  and  under  the  following  condi- 
tions ;  (that  is  to  say,) 

Subject  to  the  above  provisions  in  regard  to  altering 
levels,  it  shall  be  lawful  for  the  company  to  diminish 
the  inclination  or  gradients  of  the  railway  to  any  ex- 
tent, and  to  increase  the  said  inclination  or  gradients 
as  follows;  (that  is  to  say,)  iii  gradients  of  an  inclina- 
tion not  exceeding  one  in  a  hundred,  to  any  extent  not 
exceeding  ten  feet  per  mile,  or  to  any  further  extent 
which  shall  be  certified  by  the  Board  of  Trade  to  be 
consistent  with  the  public  safety,  and  not  prejudicial  to 
the  public  interest ;  and  in  gradients  of  or  exceeding 
the  inclination  of  one  in  a  hundred,  to  any  extent  not 
exceeding  three  feet  per  mile,  or  to  any  farther  extent 
which  shall  be  so  certified  by  the  Board  of  Trade  as 
aforesaid  : 

It  shall  be  lawful  for  the  company  to  diminish  the  radius 
of  any  curve  described  in  the  said  plan  to  any  extent 
which  shall  leave  a  radius  of  not  less  than  half  a  mile, 
or  to  any  further  extent  authorized  by  sucli  certificate 
as  aforesaid  from  the  Board  of  Trade : 

It  shall  be  lawful  for  the  company  to  make  a  tunnel,  not 
marked  on  the  said  plan  or  section,  instead  of  a  cut- 
ting, or  a  viaduct  instead  of  a  solid  embankment,  if 
authorized  by  such  certificate  as  aforesaid  from  the 
Board  of  Trade. 

15.  It  shall  be  lawful  for  the  company  to  deviate  from  L:iicnl  dcvi- 
the   line    delineated  on   the  plans  so   deposited,  pmvidcd  """""• 
that  no  such  deviation  shall  extend  to  a  greater  distance 

than  the  limits  of  deviation  delineated  upon  the  said  plans, 


clxiv 


Works  to  be 
executed. 


Inclined 
planes,  &c. 


Appendix — Statutes. 

nor  to  a  greater  extent  in  passing  through  a  town,  village, 
or  lands  continuously  built  upon  than  ten  yards,  or  else- 
where to  a  greater  extent  than  one  hundred  yards  from  the 
said  line,  and  that  the  railway  by  means  of  such  deviation 
be  not  made  to  extend  into  the  lands  of  any  person,  whe- 
ther owner,  lessee,  or  occupier,  whose  name  is  not  men- 
tioned in  the  books  of  reference,  without  the  previous 
consent  in  writing  of  such  person,  unless  the  name  of  such 
person  shall  have  been  omitted  by  mistake,  and  the  fact 
that  such  omission  proceeded  from  mistake  shall  have  been 
certified  in  manner  herein  or  in  the  special  act  provided 
for  in  cases  of  unintentional  errors  in  the  said  books  of  re- 
ference, (h) 

\6.  Subject  to  the  provisions  and  restrictions  in  this  and 
the  special  act,  and  any  act  incoi'porated  therewith,  it  shall 
be  lawful  for  the  company,  for  the  purpose  of  constructing 
the  railway,  or  the  accommodation  works  connected  there- 
with, hereinafter  mentioned,  to  execute  any  of  the  following 
works  ;  (that  is  to  say,) 

They  may  make  or  construct  in,  upon,  across,  under,  or 
over  any  lands,  or  any  streets,  hills,  valleys,  roads, 
railroads,  or  tramroads,  rivers,  canals,  brooks,  streams, 
or  other  waters,  within  the  lands  described  in  the  said 
plans,  or  mentioned  in  the  said  books  of  reference  or 
any  correction  thereof,  such  temporary  or  permanent 
inclined  planes,  tunnels,  embankments,  aqueducts, 
bridges,  roads,  ways,  passages,  conduits,  drains,  piers, 
arches,  cuttings,  and  fences  as  they  think  proper ; 
They  may  alter  the  course  of  any  rivers  not  navigable, 
brooks,  streams,  or  watercourses,  and  of  any  branches 
of  navigable  rivers,  such  branches  not  being  them- 
selves navigable,  within  such  lands,  for  the  purpose 
of  constructing  and  maintaining  tunnels,  bridges,  pas- 
sages, or  other  works  over  or  under  the  same,  and 
divert  or  alter,  as  well  temporarily  as  permanently, 
the  course  of  any  such  rivers  or  streams  of  water, 
roads,  sti'eets,  or  ways,  or  raise  or  sink  the  level  of  any 
such  rivers  or  streams,  roads,  streets,  or  ways,  in  order 
the  more  conveniently  to  carry  the  same  over  or 
under  or  by  the  side  of  the  railway,  as  they  may  think 
proper ; 
They  may  make  drains  or  conduits  into,  through,  or 
under  any  lands  adjoining  the  railway,  for  the  pur- 
pose of  conveying  water  from  or  to  the  railway  ; 
They  may  erect  and  construct  such  houses,  warehouses. 


(ft)  As  to  how  deviations  to  be  measured,  &c.  see  Treatise,  p.  78. 


8  Fict.  c.  20 — Railways  Clauses.  clxv 

offices,  and  other  buildings,   yards,  stations,   wharfs, 

engines,  machinery,  apparatus,    and  other  works  and 

conveniences  as  they  think  proper ; 
They  may  from  time  to  time  alter,  repair,  or  discontinue  Alterations 

the  before-mentioned  works,  or  any  of  them,  and  sub-  ^""^  ""'P*'"- 

stitute  others  in  their  stead ;  and 
They  may  do  all  other  acts  necessary  for  making,  main-  General 

taining,  altering,  or  repairing,  and  using  the  railway:  P°^^''- 
Provided  always,  that  in  the    exercise    of  the  powers  by  Proviso  as  to 
this  or  the  special  act  granted,  the  company  shall  do  as  <laniages. 
little  damage  as  can  be,  and  shall  make  full  satisfaction  in 
manner  herein  and  in  the  special  act,  and  any  act  incor- 
porated therewith,  provided,  to   all  parties  interested,  for 
all  damage  by  them  sustained  by  reason  of  the  exercise  of 
such  powei-s.  (c) 

17.  It  shall  not  be  lawful  for  the  company  to  construct  Works  below 

on  the  shore  of  the  sea,  or  of  any  creek,  bay,  arm  of  the  t'gh  water 

.      ,,        •  •      ,•         ,1  -ii  1  mark  not  to 

sea,    or  navigable  river  communicating  tnerewitn,   where  be  executed 

and  so  far  up  the  same  as  the  tide  flows  and  reflows,  any  without  the 
work,   or  to   construct  any  railway  or  bridge  across   any  Lo1-dTof"tl!e^ 
creek,  bay,  arm  of  the  sea,  or  navigable  river,  where  and  so  Admiralty, 
far  up  the  same  as  the  tide  flows  and  reflows,  without  the 
previous  consent  of  her  majesty,  her  heirs  and  successors, 
to  be  signified  in  writing  under  the  hands  of  two  of  the 
commissioners  of  her  majesty's  woods,  forests,   land  reve- 
nues, works,  and  buildings,  and  of  the  lord  high  admiral 
of  the  United  Kingdom   of  Great  Britain  and  Ireland,  or 
the   commissioners  for    executing  the  office    of  lord  high 
admiral    aforesaid  for  the  time    being,    to  be  signified  in 
writing  under  the  hand  of  the  secretary  of  the  admiralty, 
and  then  only  according  to  such  plan  and  under  such  re- 
strictions and  regulations  as  the  said  commissioners  of  her 
majesty's  woods,  forests,  land  revenues,  works,  and  build- 
ings, and  the  said  lord  high  admiral,  or  the  said  commis- 
sioners, may  approve  of,  such  approval  being  signified  as 
last  aforesaid  ;  and  where  any  such  work,  railway,  or  bridge 
shall  have  been   constructed,  it  shall   not  be  lawful  for  the 
company  at  any  time  to  alter  or  extend  the  same  without 
obtaining,  previously  to    making   any   such   alteration   or 
extension,  the   like  consents  or  approvals  ;  and  if  any  such 
work,  railway,  or  bridge  shall  be  commenced  or  completed 
contrary  to  the  provisions  of  this  act,  it  shall  be  lawful  for 
the    said    commissioners  of  her  majesty's  woods,   forests, 
land  revenues,  works,  and  buildings,  or  the  said  lord  lugh 
(c)  As  to  operation  of  above  powers,  see  Treatise,  p.  85  ot  seq. 
As  to  operation  of  first  clause  of  proviso  as  to  damage,  see  Irea- 
ise,  p.  90. 


clxvi  Appendix — Statutes. 

admiral,  or  the  said  commissioners  for  executing  the  office 
of  lord  high  admiral,  to  abate  and  remove  the  same,  and 
to  restore  the  site  thereof  to  its  former  condition,  at  the  cost 
and  charge  of  the  company  ;  and  the  amount  thereof  may 
be  recovered  in  the  same  manner  as  a  penalty  is  recoverable 
against  the  company. 
Alteration  of  ]  8.  It  shall  be  lawful  for  the  company,  for  the  purpose 
T'T  &c  ^""^  ^^  constructing  the  railway,  to  raise,  sink,  or  otherwise 
alter  the  position  of  any  of  the  watercourses,  water  pipes, 
or  gas  pipes  belonging  to  any  of  the  houses  adjoining  or 
near  to  the  railway,  and  also  the  mains  and  other  pipes 
laid  down  by  any  company  or  society  who  may  furnish 
the  inhabitants  of  such  houses  or  places  with  water  or 
gas,  and  also  to  remove  all  other  obsh-uctions  to  such  con- 
struction, so  as  the  same  respectively  be  done  with  as  little 
detriment  and  inconvenience  to  such  company,  society,  or 
inhabitants  as  the  circumstances  will  admit,  and  be  done 
under  the  superintendence  of  the  company  to  which  such 
water  pipes  or  gas  pipes  belong,  and  of  the  several  com- 
missioners or  trustees,  or  persons  having  control  of  the 
pavements,  sewers,  roads,  streets,  highways,  lanes,  and 
other  public  passages  and  places  within  the  pai'ish  or  dis- 
trict where  such  mains,  pipes,  or  obstructions  shall  be 
situate,  or  of  their  surveyor,  if  thej"^  or  he  think  fit  to 
attend,  after  receiving  not  less  than  forty-eight  hours  notice 
for  that  purpose. 
Company  not  19.  Provided  alwaj's,  that  it  shall  not  be  lawful  for  the 
to  rlisturi)       comnanv  to  remove  or  displace  any  of  the  mains  or  pipes 

pipes  until         ,     ,  '        r  ■  •■NT  1  A 

they  have  laid  (other  than  private  service  pipesj,  syphons,  plugs,  or  other 
down  others,  works  belonging  to  any  such  company  or  society,  or  to  do 
any  thing  to  impede  the  passage  of  water  or  gas  into  or 
through  such  mains  or  pipes,  until  good  and  sufficient 
mains  or  pipes,  syphons,  plugs,  and  all  other  works  ne- 
cessary or  proper  for  continuing  the  supply  of  water  or 
gas  as  sufficiently  as  the  same  was  supplied  by  the  mains 
or  pipes  proposed  to  be  removed  or  displaced,  shall,  at 
the  expense  of  the  company,  have  been  first  made  and 
laid  down  in  lieu  thereof,  and  be  ready  for  use  in  a  posi- 
tion as  little  varying  from  that  of  the  pipes  or  mains  pro- 
posed to  be  removed  or  displaced  as  may  be  consistent 
with  the  construction  of  the  railway,  and  to  the  satisfaction 
of  the  surveyor  or  engineer  of  such  water  or  gas  company 
or  society,  or,  in  case  of  disagreement  between  sucli  sur- 
veyor or  engineer  and  the  company,  as  a  justice  shall 
direct. 
Pipes  not  to       20.  It  shall  not  be  lawful  for  the  company  to  lay  down 

be  laid  con-  ^      ^  "^ 


8  Vict.  c.  20 — Railways  Clauses.  clxvii 

any  such  pipes  contrary  to  the  regulations  of  any  act  of  trary  lo  any 
parliament  relating  to  such  water  or  gas  company  or  so-  ^'^•'  '""^  «'|h- 
ciety,  or  to  cause  any  road  to  be  lowered  for  the  purposes  lu^/facrroad 
of  the  railway,  without  leaving  a  covering  of  not  less  than  lo  be  retained, 
eighteen  inches  from  the  surface  of  the  road  over   such 
mains  or  pipes. 

21.  The  company  shall  make  good  all  damage  done  to  Company  to 
the  property  of  the  water  or  gas  company  or  society,  by  '"'*''*-'  g"""* »" 
the  disturbance  thereof,  and  shall  make  full  compensation    ^'^^^^' 

to  all  parties  for  any  loss  or  damage  which  they  may  sus- 
tain by  reason  of  any  interference  with  the  mains,  pipes,  or 
works  of  such  water  or  gas  company  or  society,  or  with  the 
private  service  pipes  of  any  person  supplied  by  them  with 
water. 

22.  If  it  shall  be  necessary  to  construct  the  railway  or  When  railway 
any  of  the  works  over  any  mains   or  pipes  of  any  such  com!fa*n'"{'^'' 
water  or  gas  company  or  society,   the  company  shall,  at  make  a  cui- 
their  own  expense,  construct  and  maintain  a  good  and  suffi-  ^•^'■'• 

cient  culvert  over  such  main  or  pipe,  so  as  to  leave  the  same 
accessible  for  the  purpose  of  repairs. 

23.  Ifby  any  such  operations  as  aforesaid  the  company  I'enalty  for 
shall  interrupt  the  supply  of  any  water  or  gas  they  shall  supply  of  ^gas 
forfeit  twenty  pounds  for  every  day  that  such  supply  shall  or  waier. 

be  so  interrupted,  and  such  penalty  shall  be  appropriated 
to  the  benefit  of  the  poor  of  the  parish  in  which  such  ob- 
struction shall  occur,  in  such  manner  as  the  overseers  of  the 
poor  of  the  parish  shall  direct. 

24.  If  any  person   wilfully  obstruct  any  person  acting  Penalty  for 
under  the  authority  of  the  company  in  the  lawful  exercise  of  "ons'irucaon 
their  jjower,  in  setting  out  the  line  of  the  railwa}',  or  pull  of  railway, 
up  or  remove  any  poles  or  stakes  driven  into  the  ground 

for  the  purpose  of  so  setting  out  the  line  of  the  raihva}',  or 
deface  or  destroy  any  marks  made  for  the  same  purpose, 
he  shall  forfeit  a  sum  not  exceeding  five  pounds  for  every 
such  offence. 

And  whereas  there  are  large  tracts  of  land  in  Ireland  Dminaf^e  nf 
subject    to    flood    and    injury  by  water,    and    the   rivers,      Landt. 
streams,  and  watercourses  are  in  many  places  obstructed 
by  shoals,  insufficient   bridges,  culverts,  weirs,  and  other 
works,  whereby  the  waters  thereof  are  elevated  above  their 
natural  level:    And  whereas    an    act   of  parliament   was 
passed  in  the  second  year  of  the  reign  of  his  late  Majesty 
King  William  the   Fourth,  intituled  "  An  Act  to  empower  ^  &^^  Will,  a, 
Landed  Proprietors  in   Ireland  to  sink,   embank,  and  re- 
move Obstructions  in  Rivers;"  And  whereas  another  act 


clxviii  Appendix — Statutes. 

was  passed  in  the  sixth  year  of  the  reign  of  her  present 
5  &  6  Vict.  c.  Majesty,  intituled  "  An  Act  to  promote  the  Drainage  of 
'^'  Lands,  and  Improvement  of  Navigation  and  Water  Power 

in   connection  with  such  Drainage,  in   Ireland;"    and  by 
the    said   last-mentioned   act,  public   commissioners   were 
appointed  to  carry  the  said  last-recited  act  into  execution  : 
And  whereas  it  is  essential,  for  carrying  into  effect   the 
purposes  of  the  said  acts,  and  for  the  improvement  of  agi-i- 
culture,  that  ample  provision  be  made  in  all  railway  works 
in  Ireland,  for  the  free  and  uninterrupted  passage  of  the 
waters  at  such  level  as  will  be  sufficient  not  only  for  the 
present  but  all  future  discharge  of  the  waters  from  lands 
crossed  by  or  being  on  either  side  of  such  works,  and  that 
the  bridges   of  railways  crossing  all  watercourses,  rivers, 
lakes,  or  estuaries  which  are  or  hereafter  may  be  made 
navigable,  shall  be  so  constructed  as  to  admit  of  the  com- 
modious navigation  of  the  same :  therefore,  with  respect  to 
the  provision  to  be  made  for  the  drainage  of  land  in  li-eland 
which  may  be  crossed  by  the  railway,  and  for  the  protec- 
tion of  the  navigation  connected  therewith,  be  it  enacted 
as  follows: 
The  company      25.  If  the  Special  act  shall  authorize  the  constiuction  of 
from  "™^'"    a  railway  in  Ireland,  the  company  shall  and  they  are  hei-eby 
to  the  dr^in-    required,  from  time  to  time,  before  proceeding  to  construct 
age  commis-    gj^y  portion  of  the  railway,  to  submit  to  the  commissioners 
laod'^plaiis,'^^"  acting  in  execution  of  the  said  act  of  the  sixth  year  of  her 
&c.  oi  the       present   majesty,    or  any   act   amending   the   same,   such 
portion  of  the  pj^j^g    sections,  and  surveys  as  shall  be  necessary  to  enable 

railwaywhich  r  '.,  '.     .  ^       j      -j  xi  i  j 

they  are  about  the   said  commissioners  to  decide  upon  the  number  and 
to  execute.      adequacy  of  the  waterways  of  all  bridges,  culverts,  tunnels, 
watercourses,  and  other  works  across  the  line  of  such  por- 
tion as  aforesaid  of  the  railway,  for  the  free  and  uninter- 
rupted discharge  of  the  waters  from  all  lands  crossed  by  or 
lying  on  either  side  of  or  near  the  railway,  at  such  level  as 
shall  in  the  opinion  of  the  said  commissioners  be  sufficient 
for  the  present  and  prospective  drainage  and  improvement 
of  such  lands,  and  (in  cases   of  rivers,  lakes,  estuaries,  or 
watercourses,  which  are  now  or  may  be  capable  of  being 
made  navigable)   upon  the   height   and   adequacy   of  all 
bridges  and  works  crossing  the  same,  for  the  commodious 
navigation  thereof. 
Soch  commis-      26.  The  said  commissioners  shall  and  they  are  hereby 
sioners  to  in-  required,  without  any  unnecessary  delay,  to  investigate,  by 
report^on  ^ihe  such  means  as  to  them  shall  seem  fit,  the  adequacy  of  all 
works  neces-  such  works  for  such  purjjoses  as  aforesaid,  and   to  decide 
sary  for  drain-  ^^^  certify,  by  a  writing  under  their  hands,  or  the  hands  of 


8  Fict.  c.  20 — Railrvays  Clauses.  clxix 

any  two  of  them,  the  number,  situation,  and  least  possible 
dimensions  as  to  breadth,  depth,  and  height  of  the  several 
openings  of  such  bridges,  culverts,  tunnels,  or  other  works 
connected  with  such  portion  of  the  railway  as  aforesaid, 
which  shall  be  necessary  for  the  passage  of  water,  or  for 
navigation  under  or  across  such  railway ;  and  it  shall  not 
be  lawful  for  the  company  to  proceed  with  the  execution 
of  any  of  the  works  connected  with  any  portion  of  the  i-ail- 
way  without  having  first  obtained  such  a  certificate  as  afore- 
said i-especting  such  portion  of  the  railway,  under  the 
hands  of  the  said  commissioners  or  any  two  of  them,  as 
aforesaid ;  nor  shall  the  company  be  at  liberty  to  deviate 
from  such  certificate  in  respect  to  such  works,  nor  to  exe- 
cute the  same  otherwise  than  in  conformity  therewith,  with- 
out the  previous  approbation  in  writing  of  the  said  com- 
missioners. 

27.  It   shall  be   lawful   for   the   said  commissioners  to  Summary  ap- 

apply   by  petition    in    a  summary   way    to   the  Court  of  fhe'^Coun'of 

Chancery,  complaining  of  any  omission  on  the  part  of  the  Chancery  to 

company  to  submit  such  plans,  sections,  and  surveys  to  the  '^'"'<"'ce  the 

.  ,^       •'     .     .  n  . -.  ,.  . ,  .     .    "   ,  execution  of 

said  commissioners  as  atoresaid,  or  ot  the  omission  to  con-  such  works. 

struct  any  such  bridge,  culvert,  tunnel,  or  otlier  works  for 
the  passage  of  water,  in  such  manner  as  shall  be  so  certified 
by  the  said  commissioners,  and  thereupon  it  shall  be  lawful 
for  the  said  court  to  direct  such  works  to  be  made  or  con- 
structed by  the  company  in  such  manner  as  shall  be 
conformable  to  the  certificate  of  tlie  said  commissioners, 
and  to  the  said  court  shall  seem  necessary  or  proper,  and 
to  make  from  time  to  time  such  further  or  other  order 
for  restraining  the  company  or  any  other  persons  from  pro- 
ceeding with  any  of  the  works  connected  with  such 
portion  of  railway,  except  in  conformity  with  the  certi- 
ficate of  tlie  said  commissioners,  and  to  issue  any  v/rit  of 
injunction  for  the  purpose  aforesaid;  and  such  court  shall 
have  power  to  award  costs  to  be  paid  by  such  company  or 
persons. 

28.  Nothing  in  this  or  the  special  act  shall  extend  or  be  Saving  of  the 
construed  to  prejudice  or  aftect  the  powers  or  authorities  of  ,1^' J.^^^com 
the  commissioners  acting  in  execution  of  the  said  act  of  the  missioners. 
sixth  year  of  her  present  majesty,  but  all  such  powers  shall 

be  in  full  force  as  to  the  formation  of  any  cut,  river,  or 
■watercourse  across  the  railway,  but  such  powers  sliall  not  be 
exercised  so  as  to  prevent  or  obstruct  the  working  or  using 
of  the  railway. 

29.  And  whereas  it  is  expedient  to  encourage  the  csta-  thc  dr-iinaRe 
blishment  of  manufactories  to  be  worked  by  water  power  in  ^°™';  j'^."^''^ 

H  H 


dxx  Appendix — Statutes. 

to  have  power  Ireland  ;  be  it  therefore  enacted,  that  whenever  it  may 
qaeslious  as  ^e  requisite  for  the  formation  of  a  watercourse  for  manu- 
to  the  execu-  facturing  purposes  to  construct  an  arch,  culvert,  tunnel, 
!!^°t^''lr°'^''.^'  or  watercourse  beneath,  or  an  aqueduct  above  any  rail- 

or  to  execute  -tii  ii  t/t«  ini  • 

works  for  car- way  m  Ireland,  and  that  dmerences  shall  have  arisen 
rying  water-  between  the  directors  of  such  railway  and  the  person  in- 
the  raiiVay^^  t^^^sted  in  obtaining  the  water  power,  either  as  to  the 
manner  in  which  such  works  shall  be  executed,  or  the 
amount  of  compensation  which  should  be  paid,  it  shall  be 
lawful  to  refer  the  question  in  issue  to  the  commissioners 
acting  under  the  said  recited  act  of  the  fifth  and  sixth 
years  of  the  reign  of  her  Majestj"  Queen  Victoria,  and  their 
decision  thereon  shall  be  final  and  conclusive ;  and  if  the 
said  commissioners  shall  be  of  opinion  that  the  proposed 
works  can  be  executed  without  injurj^  to  the  railway,  and 
if  they  sliall  think  proper  so  to  do,  they  may  undertake 
the  execution  of  so  much  of  the  said  works  as  shall  be  in 
connection  with  such  railway,  at  the  expense  of  the  parties 
for  whose  benefit  the  watercourse  shall  be  made,  with 
the  same  powers  and  authorities  as  are  given  by  the  said 
act  for  the  execution  of  any  works  for  drainage. 

Temporary  And  with  respect  to  the  temporary  occupation  of  lands 

Use  of  near  the  railway  during  the  construction  thereof,  be  it 

Lands.  enacted  as  follows  : 

Company  30.  Subject  to  the  provisions  herein  and  in  the  special 

may  occupy  j^^^  contained,  it  shall  be  lawful  for  the  company,  at  any 

lemporarily        .  ,.  '  .        .  ,,    .  ■     ^  ■•        i  •    i 

private  roads  tmie  bciore  the  expiration  ot  the  period  by  the  special  act 
within  Jive  limited  for  the  completion  of  the  railway,  to  enter  upon 
of  "be'^r  Jl?'  ^  and  use  any  existing  private  road,  being  a  road  gravelled 
way.  or  formed  with  stones  or  other  hard  materials,  and  not 

being  an  avenue  or  a  planted  or  ornamental  road,  or  an 
approach  to  any  mansion  house,  within  the  prescribed 
limits,  if  any,  or,  if  no  limits  be  prescribed,  not  being 
more  than  five  hundred  yards  distant  from  the  centre  of 
the  railway  as  delineated  on  the  plans ;  but  before  the 
company  shall  enter  upon  or  use  any  such  existing  road 
they  shall  give  three  weeks  notice  of  their  intention  to  the 
owners  and  occupiers  of  such  road,  and  of  the  lands  over 
which  the  same  shall  pass,  and  shall  in  such  notice  state 
the  time  dm-ing  which,  and  the  purposes  for  which,  they 
intend  to  occupy  such  road,  and  shall  pay  to  the  owners 
and  occupiers  of  such  road,  and  of  the  lands  through 
which  the  same  shall  pass,  such  compensation  for  the  use 
and  occupation  of  such  road,  either  in  a  gross  sum  of 
money  or  by  half-yearly  instalments,  as  shall  be  agreed 


8  Vict.  c.  20 — Railways  Clauses.  clxxi 

upon  between  such  owners  and  occupiers  respectively  and 
the  company,  or  in  case  they  differ  about  the  compensa- 
tion the  same  shall  be  settled  by  two  justices,  in  the  same 
manner  as  any  compensation  not  exceeding-  fifty  pounds 
is  directed  to  be  settled  by  the  said  Lands  Clauses  Con- 
solidation Act. 

31.  It  shall  be  lawful  for  the  owners  and  occupiers  of  Power  to 
any  such  road,  and  of  the  lands  over  which  the  same  owners  aud 
passes,  within  ten  days  after  the  service  of  the  aforesaid  road''a'nd*  °^ 
notice,  by  notice  in  writing  to  the  company,  to  object  to  'and  to  object 
the  company  making  use  of  such  road,  on  the  ground  "'*'.°l''*''i, 

1x11  1  ii  1  •    1  road  SDOuUl 

that  other  roads,  sucli  as  the  company  are  herembefore  be  taken, 
authorized  to  use  for  the  purposes  aforesaid,  or  that  some 
public  road,  would  be  more  fitting  to  be  used  for  the 
iame  ;  and  upon  the  objection  being  so  made  such  pro- 
ceedings may  be  had  as  are  hereinafter  mentioned  with 
respect  to  lands  temporarily  occupied  hj  the  company,  in 
respect  of  which  three  weeks  notice  is  hereinafter  re- 
quired to  be  given,  and  in  the  same  manner  as  if  in  the 
provisions  relative  to  such  proceedings  the  word  road  or 
roads,  or  the  words  road  and  the  laud  over  wliich  the 
same  passes,  as  the  case  may  require,  had  been  substi- 
tuted in  such  provisions  for  the  word  lands. 

32.  Subject  to  the  provisions  herein  and  in  tlie  special  Power  to 
act  contained,  it  shall  be  lawful  for  the  company,  at  any  jf.l'rary  "osjgs. 
time  before  the  expiration  of  the  period  by  the  special  sion  (a)  of 
act  limited  for  the  completion  of  the  railway,  without '"'"i. without 
making  any  previous  payment,  tender,  or  deposit,  to  enter  fJenr"/  ""^ 
upon  any  lands  within  the  prescribed  limits,  or,  if  no  price, 
limits  be  prescribed,  not  being  more  than  two  hundred 

yards  distant  from  the  centre  of  the  railway  as  delineated 
on  the  plans,  and  not  being  a  garden,  orchard,  or  planta- 
tion attached  or  belonging  to  a  house,  nor  a  park,  itlanted 
^valk,  avenue  or  ground  ornamentally  (b)  planted,  and 
not  being  nearer  to  the  mansion  house  of  the  oyiier  of 
any  such  lands  than  the  prescribed  distance,  or  if  no  dis- 
tance be  prescribed,  then  not  nearer  than  five  hundred 
yards  therefrom,  and  to  occupy  the  said  lands  so  long  as 
may  be  necessary  for  the  construction  or  repair  of  that 
portion  of  the  railway,  or  of  the  accommodation  works 

(u)  As  to  what  held  not  a  taking  temporary  possession  of 
land  under  prior  act,  see  Innocent  v.  Koith  Midland  liaittvaii 
Company,  1  Railw.  Cas.  255  ;  and  I'reat.  p.  167. 

(b)  See  Stone  v.    Commercial    Uuilway   Company,   1    llailw. 
Cas.  395  ;  and  Treat,  ante,  p.  1 12. 
n  Ji  2 


clxxii 


Company  to 
give  notice 
previons  to 
SDch  tempo- 
rary posses- 
sion. 


Appendix — Statutes. 

connected  therewith,  hereinafter  mentioned,  and  to  use 
the  same  for  any  of  the  following  purposes  ;  (that  is  to 
say,) 

For  the  purpose  of  taking  earth  or  soil  by  side  cuttings 
therefrom ; 

For  the  purpose  of  depositing  spoil  thereon  ; 

For  the  purpose  of  obtaining  materials  therefrom  for  the 
construction  or  repair  of  the  railway  or  such  accom- 
modation works  as  aforesaid  :  or 

For  the  purpose  of  forming  roads  thereon  to  or  from  or 
by  the  side  of  the  railway  ; 
And  in  exercise  of  the  powers  aforesaid  it  shall  be  law- 
ful for  the  company  to  deposit  and  also  to  manufacture 
and  work  uj)on  such  lands  materials  of  every  kind  used 
in  constructing  the  railway,  and  also  to  dig  and  take 
from  out  of  any  such  lands  any  clay,  stone,  gravel,  sand, 
or  other  things  that  may  be  found  therein  usefiil  or  proper 
for  constructing  the  railway  or  any  such  roads  as  afore- 
said, and  for  the  purposes  aforesaid  to  erect  thereon 
workshops,  sheds,  and  other  buildings  of  a  temporaiy 
nature :  provided  always,  that  nothing  in  this  act  con- 
tained shall  exempt  the  company  from  an  action  for 
nuisance  or  other  injury,  if  any  done,  in  the  exercise  of 
the  powers  hereinbefore  given,  to  the  lands  or  habitations 
of  any  party  other  than  the  party  whose  lands  shall  be 
so  taken  or  used  for  any  of  the  purposes  aforesaid :  pro- 
vided also,  that  no  stone  or  slate  quarry,  brick  field,  or 
other  like  place,  which  at  the  time  of  the  passing  of  the 
special  act  shall  be  commonly  worked  or  used  for  getting 
materials  therefrom  for  the  purpose  of  selling  or  disposing 
of  the  same,  shall  be  taken  or  used  by  the  company, 
either  wholly  or  in  part,  for  any  of  the  purposes  lastly 
hereinbefore  mentioned. 

33.  In  case  any  such  lands  shall  be  required  for  spoil 
banks  or  for  side  cuttings,  or  for  obtaining  materials  for 
the  construction  or  repair  of  the  railway,  the  company 
shall  before  entering  thereon  (except  in  the  case  of  acci- 
dent to  the  railway  requiring  immediate  (c)  reparation) 
give  three  weeks  notice  in  writing  to  the  owners  and 
occupiers  of  such  lands  of  their  intention  to  enter  upon 
the  same  for  such  purposes  ;  and  in  case  the  said  lands 
are  required  for  any  of  the  other  purposes  hereinbefore 
mentioned,  the  company  shall  (except  in  the  cases  afore- 
said) give  ten  days  like  notice  thereof,  and  the  company 


(c)  See  5  a  6  Vict.  c.  55,  s.  14 ;  Treat,  pp.  339,  340. 


8  Vict.  c.  20 — Railways  Clauses.  clxxiii 

shall  in  such  notices  respectively  state  the  substance  of 
the  provisions  hereinafter  contained  respecting  the  rio-ht 
of  such  owner  or  occupier  to  require  the  company  to 
purchase  any  such  lands,  or  to  receive  compensation  for 
the  temporary  occupation  thereof,  as  the  case  may  be. 

34.  The  said  notice  shall  either  be  served  personally  on  Service  of 
such  owners  and  occupiers,  or  left  at  their  last  usual  place  "o'ices  on 
of  abode,  if  any  such  can,  after  diligent  inquiry,  be  found,  occ"  p?ers"of 
and  in  case  any  such  owner  shall  be  absent  from  the  united  lands, 
kingdom,  or  cannot  be  found  after  diligent  inquiry,  shall 
also  be  left  with  the  occupier  of  such  lands,  or,  if  there  be 
no  such  occupier,  shall  be  affixed  upon  some  conspicuous 
part  of  such  lands. 

3-3.  In  any  case  in  wdiich  a  notice  of  three  Aveeks  is  Power  to 
liereinbefore  required  to  be  given,  it  shall  be  lawful  for  the  owner  to 
owner  or  occupier  of  the  lands  therein  referred  to,  within  other'iands 
ten  days  after  the  service  of  such  notice,  by  notice  in  ou^ht  to  be 
writing  to  the  company,  to  object  to  the  company  making  'aken. 
use  of  such  lauds,  either  on  the  ground  that  the  lands  pro- 
posed to  be  taken  for  the  purposes  aforesaid,  or  some  part 
thereof,  or  of  the  materials  contained  therein,  are  essential 
to  be  retained  by  such  owner,  iu  order  to  the  beneficial 
enjoyment  of  other  neighbouring  lands  belonging  to  him, 
or  on  the  ground  that  other  lands  lying  contiguous  or 
near  to  those  proposed  to  be  taken  would  be  more  fitting 
to  be  used  for  such  purposes  by  the  company ;  and  upon 
objection  being  so  made  such  proceedings  may  be  had  as 
hereinafter  mentioned. 

36.  If  the  objection  so  made  be  on  the  ground  that  the  Power  to 
lands  proposed  to  be  taken,  or  some  part  thereof,  or  of  J"'°  Jj"^'^'"^, 
the  materials  contained  therein,  are  essential  to  be  retained  ii.e  lands  and 
by  the  owner  in  order  to  the  beneficial  enjoyment  of  other  ™jj""^*|*^''*" 
neighbouring  lands  belonging  to  him,  it  shall  be  lawful  "°' 
for  any  justice,  on  the  application  of  such  owner,  to 
summon  the  company  to  appear  before  two  justices  tit  a 
time  and  place  to  be  named  in  the  summons,  such  time 
not  being  later  than  the  expiration  of  the  said  twenty- 
one  days  notice  ;  and  on  the  appearance  of  tlie  company, 
or,  in   their  absence,  upon  proof  of  due  service  of  the 
summons,  it  shall  be  lawful  for  sucli  justices  to  inquire 
into  the  truth  of  such  ground  of  objection  ;  and  if  it  ap- 
pear to  such  justices  that  for  some  special  reason,  to  be 
stated  in  the  order  after  mentioned,  the  lands  so  proposed 
to  be  taken,  or  any  part  thereof,  or  of  tlie  materials  con- 
tained therein,  are  essential  to  be  retained  by  tlie  owner 
of  such  lands  in  order  to  the  beneficial  enjoyment  of  other 


clxxiv 


Appendix — Statutes. 


neighbouring  lands  belonging  to  him,  and  ought  not 
therefore  to  be  taken  or  used  by  the  company,  it  shall  be 
lawful  for  such  justices,  by  writing  under  their  hands,  to 
order  that  the  lands  so  proposed  to  be  taken,  or  some  part 
thereof,  or  of  the  materials  contained  therein,  to  be  speci- 
fied in  such  order,  shall  not  be  taken  or  used  by  the  com- 
pany, and  after  service  of  such  order  on  the  company  it 
shall  not  be  lawful  for  them  to  take  or  use,  without  the 
previous  consent  in  writing  of  the  owner  thereof,  any  of 
the  lands  or  materials  whicli  by  such  order  they  are 
ordered  not  to  take  or  use. 

37.  If  the  objection  so  made  as  aforesaid  be  on  the 
ground  that  other  lands  lying  contiguous  to  those  pro- 
posed to  be  taken,  and  being  sufficient  in  quantity,  and 
such  as  the  company  are  hereinbefore  authorized  to  use 
for  the  purposes  aforesaid,  would  be  more  fitting  to  be 
used  by  the  company,  and  if  in  such  case  the  company 
shall  refuse  to  occupy  such  other  lands  in  lieu  of  those 
mentioned  in  the  notice,  it  shall  be  lawful  for  any  justice, 
on  the  application  of  such  owner  or  occupier,  to  summon 
the  company  and  the  owners  and  occupiers  of  such  other 
lands  to  appear  before  two  justices  at  a  time  and  place  to 
be  named  in  such  summons,  such  time  not  being  more 
than  fourteen  days  after  such  application  nor  less  than 
seven  days  from  the  service  of  such  summons ;  and  on 
the  appearance  of  the  parties,  or,  in  the  absence  of  anj'  of 
them,  upon  proof  of  due  service  of  the  summons,  it  shall 
be  lawful  for  such  justices  to  determine  summarily  which 
of  the  said  lands  shall  be  used  by  the  company  for  the 
purposes  aforesaid,  and  to  authorize  the  company  to 
occupy  and  use  the  same  accordingly, 

38.  If  in  the  case  last  mentioned  it  shall  appear  to  sucli 
justices,  upon  the  inquiry  before  them,  that  the  lands  of 
any  other  party  not  summoned  before  them,  being  sufli- 

before  them,  cient  in  quantity,  and  such  as  the  company  are  herein- 
before authorized  to  take  or  use  for  the  purposes  aforesaid, 
would  be  more  fitting  to  be  used  by  the  company  than 
the  lands  of  the  person  who  shall  have  been  so  summoned 
as  aforesaid,  it  shall  be  lawful  for  the  said  justices  to 
adjourn  such  inquiry,  and  to  summon  sucli  other  person 
to  appear  before  them  at  any  time,  not  being  more  than 
fourteen  days  from  such  inquiry  nor  less  than  seven  days 
from  the  ser^'ice  of  such  summons ;  and  on  the  appearance 
of  the  parties,  or,  in  the  absence  of  any  of  them,  on  proof 
of  due  service  of  the  summons,  it  shall  be  lawful  for  sucli 
justices  to  determine  finally  which  lands  shall  be  used  for 


S  Vict.  c.  20— Railways  Clauses.  clxxv 

the  purposes  aforesaid,  aud  to  authorize  the  company  to 
occupy  aud  use  the  same  accordingly. 

39.  Before  entering,  under  the  provisions  hereinbefore  The  company 
contained,  upon  any  such  lands  as  shall  be  required  for  ^°  g'^«  «"f«- 
spoil  banks  or  for  side  cuttings,  or  for  obtaining  materials  qu'/ed  '^" 
or  forming  roads  as  aforesaid,  the  company  shall,  if  re- 

quired  by  the  owner  or  occupier  thereof,  seven  days  at 
least  before  the  expiration  of  the  notice  to  take  such  lauds 
as  hereinbefore  mentioned,  find  two  suflicient  persons,  to 
be  approved  of  by  a  justice,  in  case  the  parties  differ, 
who  shall  enter  into  a  bond  to  such  owner  or  occupier  in 
a  penalty  of  such  amount  as  shall  be  approved  of  by  such 
justice,  in  case  the  parties  differ,  conditioned  for  the  pay- 
ment of  such  compensation  as  may  become  payable  in  re- 
spect of  the  same  in  manner  herein  mentioned. 

40.  Before  the  company  shall  use  any  such  lands  for  Company  to 

any  of  the  purposes  aforesaid  they  shall,  if  required  so  to  ?^Pf*i^,"** 
J     1       J.1  •      ii  p  ,      1  ■.      lands  before 

do  by  the  owner  or  occupier  thereof,  separate  the  same  by  using  them, 
a  sufficient  fence  from  the  lands  adjoining  thereto,  with 
such  gates  as  may  be  required  by  the  said  owner  or  occu- 
pier for  the  convenient  occupation  of  such  lands,  aud 
shall  also,  to  all  private  roads  used  by  them  as  aforesaid, 
put  up  fences  and  gates  in  like  manner,  in  aU  cases  where 
the  same  may  be  necessary  to  prevent  the  straying  of  cattle 
from  or  upon  the  lands  traversed  by  such  roads,  and  in 
case  of  any  difference  between  the  owners  or  occupiers 
of  such  roads  aud  lands  and  the  company  as  to  the  neces- 
sity for  such  fences  and  gates,  such  fences  and  gates  as  any 
two  magistrates  shall  deem  necessary  for  the  purposes 
aforesaid,  on  application  beuig  made  to  them  in  like 
manner  as  hereinbefore  is  provided  in  respect  to  the  use 
of  such  roads. 

41 .  That  if  any  land  shall  be  taken  or  used  by  the  com-  Lands  taken 
pany,  under  the  provisions  of  this  or  the  special  act,  for  ,^ateri"ls? 
the  purpose  of  getting  materials  therefrom  for  the  con-  &c.  to  be' 
sti-uction  or  repair  of  the  railway,  or  the  accommodation  5y,rveyo*or''' 
works  connected  therewith,  they  shall  Avork  the  same  in  owner  may 
such  manner  as  the  surveyor  or  agent  of  the  owner  of  direct, 
such  land  shall  direct,  or,  in  case  of  disagreement  between 

such  surveyor  or  agent  and  the  company,  in  such  manner 
as  any  justice  shall  direct,  on  the  application  of  either 
party,  after  notice  of  the  hearing  tlie  application  shall 
have  been  given  to  the  other  party. 

42.  In  all  cases  in  whicli  the  company  shall  in  exercise  ,^,^;;7,;„°f 
of  the  powers  aforesaid  enter  upon  any  lands  for  the  i)ur-  c„n,pci  com- 
pose of  making  spoil  banks  or  side  cuttings  thereon,  or  pany  lo  pur- 


clxxvi 

chase  lands 
so  tempora- 
rily occnpied. 


Compensa- 
tion to  be 
made  for 
temporary 
occupation. 


/Appendix — Statutes. 

for  obtaining  therefrom  materials  for  the  construction  or 
repair  of  the  railway,  it  shall  be  lawful  for  the  owners  or 
occupiers  of  such  lands,  or  parties  having  such  estates 
or  interests  therein  as,  under  the  pro^asions  in  the  said 
Lands  Clauses  Consolidation  Act  mentioned,  would 
enable  them  to  sell  or  convej"  lands  to  the  company,  at 
any  time  during  the  possession  of  any  such  lands  by  the 
company,  and  before  such  owners  or  occupiers  shall  have 
accepted  compensation  from  the  company  in  respect  of 
such  temporary"  occupation,  to  serve  a  notice  in  writing 
on  the  company  requiring  them  to  purchase  the  said 
lands,  or  the  estates  and  interests  therein  capable  of  being 
sold  and  conveyed  by  them  respectively  ;  and  in  such 
notice  such  owners  or  occupiers  shall  set  forth  the  parti- 
culars of  such  their  estate  or  interest  in  such  lands,  and 
the  amount  of  their  claim  in  respect  thereof;  and  the 
company  shall  thereupon  be  bound  to  purchase  the  said 
lauds,  or  the  estate  and  interest  therein  capable  of  being 
sold  and  conveyed  by  the  parties  serving  such  notice. 

43.  In  any  of  the  cases  aforesaid,  where  the  company 
shall  not  be  required  to  purchase  such  lands,  and  in  all 
other  cases  where  they  shall  take  temporary"  possession  of 
lands  by  virtue  of  the  powers  herein  or  in  the  special  act 
granted,  it  shall  be  incumbent  on  the  company,  within 
one  month  after  their  entry  upon  such  lands,  upon  being 
required  so  to  do,  to  pay  to  the  occupier  of  the  said  lands 
the  value  of  any  crop  or  dressing  that  may  be  thereon, 
as  well  as  full  compensation  for  any  other  damage  of  a 
temporary  nature  which  he  may  sustain  by  reason  of 
their  so  taking  possession  of  his  lands,  and  shall  also  from 
time  to  time  during  thefr  occupation  of  the  said  lands 
pay  half-yearly  to  such  occupier  or  to  the  owner  of  the 
lands,  as  the  case  may  require,  a  rent  to  be  fixed  by  two 
justices,  in  case  the  parties  differ,  and  shall  also  within 
six  months  after  they  shall  have  ceased  to  occupy  the 
said  lands,  and  not  later  than  six  months  after  the  expir- 
ation of  the  time  by  the  special  act  limited  for  the  com- 
pletion of  the  railway,  pay  to  such  oAvner  and  occupier, 
or  deposit  in  the  bank  for  the  benefit  of  all  parties  in- 
terested, as  the  case  may  require,  compensation  for  aU 
permanent  or  other  loss,  damage,  or  injury  that  raaj- 
have  been  sustained  by  them  by  reason  of  the  exercise, 
as  regards  the  said  lands,  of  the  powers  herein  or  in  the 
special  act  granted,  including  the  full  value  of  all  claj-, 
stone,  gi-avel,  sand,  and  other  things  taken  from  such 
lands. 


8  Vict.  c.  ^0— Railways  Clauses.  clxxvii 

44.  The  amount  and  application  of  the  purchase  money  Comoensa 
and  other  compensation  payable  by  the  company  in  any  'i°°  'o  t>e 
of  the  cases  aforesaid  shall  be  determined  in  the  manner  *^<=«'''»''>e<i 
provided  by  the  said  Lands  Clauses  Consolidation  Act  UndYciauses 
tor  determining  the  amount  and  application  of  the  com-  ="='• 
pensation  to  be  paid  for  lands  taken  under  the  provisions 
thereof. 

45.  And  be  it  enacted,  that  it  shall  be  lawful  for  the 
company,  in  addition  to  the  lands  authorized  to  be  com-      jj^'--^"'', 
pulsorily  taken  by  them  under  the  powers  of  this  or  the    "^'''f' """' 
special  act,  to  contract  with  any  party  willing  to  sell  tlie  Land  to  be 
same  for  the  purchase  of  any  land  adjoining  or  near  to  t'*''^"  ''"'■ 
the  railway,  not  exceeding  in  tlie  whole  the  prescribed  a,tlions"lc 
number  of  acres  for  extraordinary  purposes  ;  (that  is  to  '     ' 
say,) 

For  the  purpose  of  making  and  providing  additional 
stations,  yards,  wharfs,  and  places  for  the  accom- 
modation of  passengers,  and  for  receiving,  deposit- 
ing, and  loading  or  unloading  goods  or  cattle  to  be 
conveyed  upon  the  railway,  and  for  the  erection  of 
weighing  macliines,  toll  houses,  offices,  warehouses, 
and  other  buildings  and  conveniences  : 

For  the  purpose  of  making  convenient  roads  or  ways 
to  the  railway,  or  any  other  purpose  which  may  be 
requisite  or  convenient  for  the  formation  or  use  of 
the  railway. 

And  with  respect  to  the  crossing  of  roads,  or  other  in-   Crossing  of' 
terference  therewitli,  be  it  enacted  as  follows  :  Roads  and 

46.  If  the  line  of  the  railway  cross  any  turnpike  road    Construe- 
or  public  highway,  tlien  (except  where  otlierwise  pro-      ''"'•  °f 
vided  by  the  special  act)  either  such  road  shall  be  carried     ■^'■'''^es. 
over  the  railway,  or  the  railway  shall  be  carried  over  Crossing  of 
such  road,  by  means  of  a  bridge,  of  the  heiglit  and  widtli  '''""''• 
and  with  the  ascent  or  descent  by  this  or  tiie  special  act 

in  that  behalf  provided  :  and  sucli  bridge,  with  tlie  im- 
mediate approaches,  and  all  otlier  necessary  works  con- 
nected therev/ith,  sliall  be  executed  and  at  all  times 
thereafter  maintained  at  the  expense  of  tlie  company  : 
provided  always,  tliat,  with  the  consent  of  two  or  more 
justices  in  petty  sessions,  as  after-mentioned,  it  shall  be 
lawful  for  the  company  to  carry  the  mil  way  across  any 
highway,  other  than  a  public  carriage  road,  on  the 
level,  (d) 

(d)  As  to  effect  of  provision^  touching  cro'^sing  of  roads,  &c. 
in  prior  acts,  see  Treatise,  pp.  95,  et  seq. 
H  11  0 


clxxviii 

Provision  in 
cases  where 
roads  are 
crossed  on  a 
level. 


As  to  crossing 
of  turnpike 
roads  adjoin- 
ing stations. 


Constrnctiou 
of  bridges 
over  roads. 


Appendix — Statutes. 

47.  If  the  ruihvay  cross  any  turnpike  road  or  public 
carriage  road  on  a  level,  the  company  shall  erect  and  at 
all  times  maintain  good  and  sufficient  gates  across  such 
road,  on  each  side  of  the  railway  where  the  same  shall 
communicate  therewith,  and  shall  employ  proper  persons 
to  open  and  shut  such  gates ;  and  such  gates  shall  be 
kept  constantly  closed  across  such  road  on  both  sides  of 
the  railway,  except  during  the  time  when  horses,  cattle, 
carts,  or  carriages  passing  along  the  same  shall  have  to 
cross  sucii  railway  ;  and  such  gates  shall  be  of  such  di- 
mensions and  so  constructed  as  when  closed  to  fence  in 
the  railway,  and  prevent  cattle  or  horses  passing  along 
the  road  from  entering  upon  the  railway  ;  and  the  person 
intrusted  with  the  care  of  such  gates  shall  cause  the  same 
to  be  closed  as  soon  as  such  horses,  cattle,  carts,  or  car- 
riages shall  have  passed  through  the  same,  under  a  pe- 
nalty of  forty  shillings  for  every  default  therein :  jiro- 
vided  always,  that  it  shall  be  lawful  for  the  board  of 
trade,  in  any  case  in  which  they  are  satisfied  that  it  will 
be  more  conducive  to  the  public  safety  that  the  gates  on 
any  level  crossing  over  any  such  road  should  be  kept 
closed  across  the  railway,  to  order  that  such  gates  shall 
be  kept  so  closed,  instead  of  across  the  road,  and  in  such 
case  such  gates  shall  be  kept  constantly  closed  across  the 
railway,  except  when  engines  or  carriages  passing  along 
the  railway  shall  have  occasion  to  cross  such  road,  in 
the  same  manner  and  under  the  like  penalty  as  above 
directed  with  respect  to  the  gates  being  kept  closed 
across  the  road,  (e) 

48.  Where  the  railway  crosses  any  turnpike  road  on  a 
level  adjoining  to  a  station,  all  trains  on  a  railway  shall 
be  made  to  slacken  their  speed  before  arriving  at  such 
turnpike  road,  and  shall  not  cross  the  same  at  anj'^  greater 
rate  of  speed  than  four  miles  an  hour  ;  and  the  company 
shall  be  subject  to  all  such  rules  and  regulations  with  re- 
gard to  such  crossings  as  maj'  from  time  to  time  be  made 
by  the  board  of  trade. 

49.  Every  bridge  to  be  erected  for  the  purpose  of  car- 
rying the  railway  over  any  road  shall  (except  where 
otherwise  provided  by  the  special  act)  be  built  in  con- 
formity with  the  following  regulations  ;  (that  is  to  say), 

The  width  of  the  arch  shall  be  such  as  to  leave  there- 
under a  clear  sjiace  of  not  less  than  thirty-five  feet 
if  the  arch  be  over  a  turnpike  road,  and  of  twent\- 


(e)  See  5  &  6  Vict.  c.  55,  s.  9,  ante,  App.  8. 


I 


8  Vict.  c.  20. — Railways  Clauses.  clxxix 

five  feet  if  over  a  public  carriage  road,  and  of  twelve 
feet  if  over  a  private  road : 

The  clear  height  of  the  arch  from  the  surface  of  the 
road  shall  not  be  less  than  sixteen  feet  for  a  space  of 
twelve  feet  if  the  arch  be  over  a  turnpike  road  and 
fifteen  feet  for  a  space  of  ten  feet  if  over  a  public 
carriage  road  ;  and  in  each  of  sucli  cases  the  clear 
height  at  the  springing  of  the  arch  shall  not  be  legs 
than  twelve  feet : 

The  clear  height  of  the  arch  for  a  space  of  nine  feet 
shall  not  be  less  than  fourteen  feet  over  a  private 
carriage  road  : 

The  descent  made  in  the  road  in  order  to  carry  the 
same  under  the  bridge  shall  not  be  more  than  one 
foot  in  thirty  feet  if  the  bridge  be  over  a  turnpike 
road,  one  foot  in  twenty  feet  if  over  a  public  car- 
riage road,  and  one  foot  in  sixteen  feet  if  over  a 
private  carriage  road,  not  being  a  tramroad  or  rail- 
road, or  if  the  same  be  a  tramroad  or  railroad  the 
descent  shall  not  be  greater  than  the  prescribed  rate 
of  inclination,  and  if  no  rate  be  prescribed  the  same 
shall  not  be  greater  than  as  it  existed  at  tlie  passing 
of  the  special  act.  (/) 

50.  Every  bridge  erected  for  carrying  any  road  over  Construction 
the  railway  shall  (except  as  otherwise  provided  by  the  °(,e''i"ranway 
special  act)  be  built  in  conformity  with  the  following- 
regulations  ;  (that  is  to  say). 

There  shall  be  a  good  and  sufficient  fence  on  each  side 
of  the  bridge  of  not  less  height  than  four  i'eet,  and 
on  each  side  of  the  immediate  approaches  of  such 
bridge  of  not  less  than  three  feet : 

The  road  over  the  bridge  sliall  have  a  clear  space  be- 
tween the  fences  thereof  of  thirty-five  feet  if  tlie 

-  road  be  a  turnpike  road,  and  twentj^-five  feet  if  a 
public  carriage  road,  and  twelve  feet  if  a  private 
road : 

The  ascent  shall  not  be  more  than  one  foot  in  thirty 
feet  if  the  road  be  a  turnpike  road,  one  foot  in 
twenty  feet  if  a  public  carriage  road,  and  one  foot 
in  sixteen  feet  if  a  private  carriage  road,  not  being 
a  tramroad  or  railroad,  or  if  the  same  bt;  a  tramroad 
or  railroad  the  ascent  sliall  not  be  greater  than  tlie 

(/  )  What  is  meant  by  turnpike  road,  see  'J'reatise,  p.  1 09  ;  also 
that  the  term  "bridge"  does  not  include  the  approaches  to 
bridge,  see  Treatise,  p.  107, 


clxxx 


Tbe  width  of 
the  bridges 
need  not  ex- 
ceed tiie 
•width  of  the 
road  in  cer. 
tain  cases. 


Existing 
inclinations 
of  roads 
crossed  or 
diverted  need 
not  be  im- 
proved. 


Before 
roads  inter- 
fered with, 
others  to  be 
substituted. 


Appendix — Statutes. 

prescribed  rate  of  inclination,  and  if  no  rate  be  pre- 
scribed the  same  shall  not  be  greater  than  as  it 
existed  at  the  passing  of  the  special  act. 

51.  Provided  always,  that  in  all  cases  where  the 
average  available  width  for  the  passage  of  carriages  of 
any  existing  roads  within  fifty  yards  of  the  points  of 
crossing  the  same  is  less  than  the  width  herein-before 
prescribed  for  bridges  over  or  under  tlie  railway,  the 
width  of  such  bridges  need  not  be  greater  than  such 
average  available  width  of  such  roads,  but  so  neverthe- 
less that  such  bridges  be  not  of  less  width,  in  the  case  of 
a  turnpike  road  or  public  carriage  road,  than  twenty 
feet :  provided  also,  that  if  at  auy  time  after  the  con- 
struction of  the  railway  the  average  available  width  of 
any  such  road  shall  be  increased  beyond  the  width  of 
such  bridge  on  either  side  thereof,  the  company  shall  be 
bound,  at  their  own  expense,  to  increase  the  width  of  the 
said  bridge  to  such  an  extent  as  they  may  be  required  by 
the  trustees  or  surveyors  of  such  road,  uot  exceeding  the 
Avidth  of  such  road  as  so  widened,  or  the  maximum  width 
herein  or  in  the  special  act  prescribed  for  a  bridge  in  the 
like  case  over  or  under  the  railway. 

52.  Provided  also,  that  if  the  mesne  inclination  of  any 
road  within  two  hundred  and  fifty  yards  of  the  point  of 
crossing  the  same,  or  the  inclination  of  such  portion  of 
any  road  as  may  require  to  be  altered,  or  for  which 
another  road  shall  be  substituted,  shall  be  steeper  than 
the  inclination  herein-before  required  to  be  preserved  by 
the  company,  then  the  company  may  caiTy  any  such  road 
over  or  under  the  railway,  or  may  construct  such  altered 
or  substituted  road  at  an  inclination  not  steeper  than  the 
said  mesne  inclination  of  the  road  so  to  be  crossed,  or  of 
the  road  so  requiring  to  he  altered,  or  for  which  another 
road  shall  be  substituted,  (g) 

53.  If,  in  the  exercise  of  the  powers  by  this  or  the 
special  act  granted,  it  be  found  necessary  to  cross,  cut 
through,  raise,  sink,  or  use  any  part  of  any  road,  whe- 
ther carriage  road,  horse  road,  tramroad,  or  railway, 
either  public  or  private,  so  as  to  render  it  impassable  for 
or  dangerous  or  extraordinarily  inconvenient  to  passen- 
gers or  carriages,  or  to  the  persons  entitled  to  the  use 
thereof,  the  company  shall,  before  the  commencement  of 
any  such  operations,  cause  a  sufficient  road  to  be  made 
instead  of  the  road  to  be  interfered  with,  and  shall  at 


{g)  See  Treat,  ante,  p.  108. 


8  Vict.  c.  20 — Radwmjs  Clauses.  clxxxi 

their  own  expense  maintain  such  substituted  road  in  a 
state  as  convenient  for  passengers  and  carriages  as  the  road 
so  interfered  with,  or  as  nearly  so  as  may  be.  (/;) 

54.  If  the  company  do  not  cause  another  sufficient  Penalty  for 
road  to  be  so  made  before  they  interfere  with  any  such  "°'  substitut- 
existiug   road   as   aforesaid,  they   shall    forfeit  twenty  "'° ''  '°*''' 
pounds  for  every  day  during  which  such  substituted  road 

shall  not  be  made  after  the  existing  road  shall  have  been 
interrupted  ;  and  such  penalty  shall  be  paid  to  the  trus- 
tees, commissioner,  surveyor,  or  other  person  having  the 
management  of  such  road,  if  a  public  road,  and  shall  be 
applied  for  the  purposes  thereof,  or  in  case  of  a  private 
road  the  same  shall  be  paid  to  the  owner  thereof,  and 
every  such  penalty  shall  be  recoverable  with  costs  by 
action  in  any  of  the  supei'ior  courts,  (i) 

55.  If  any  party  entitled  to  a  right  of  way  over  any  Party  sutrer- 
road  so  interfered  with  by  the  company  shall  suffer  any  |.j;g<'a."'age 
special  damage  by  reason  that  the  company  shall  fail  to  rlTprion  of" 
cause  another  sufficient  road  to  be  made  before  they  in-  '"^'^.  ">  ""eco- 
terfere  witli  the  existing  road,  it  shall  be  lawful  for  such  uon'on^Uir' 
party   to  recover  the  amount  of  sucli   special  damage  case, 
from  the  company,  with  costs,  by  action  on  the  case  in 

any  of  the  superior  courts,  and  that  whether  any  party 
shall  have  sued  for  such  penalty  as  aforesaid  or  not,  and 
without  prejudice  to  the  right  of  any  party  to  sue  tor  the 
same. 

56.  If  the  road  so  interfered  with  can  be  restored  com-  Period  for 
patibly  with  the  formation  and  use  of  the  railway,  the  Z'Xfli"r°' 
same  shall  be  restored  to  as  good  a  conditiou  as  the  same  fered  with, 
was  in  at  the  time  when  the  same  was  first  interfered  with 

by  the  company,  or  as  near  thereto  as  may  be  ;  and  if 
such  road  cannot  be  restored  compatibly  witii  the  forma- 
tion and  use  of  the  railway,  the  company  shall  cause  the 
new  or  substituted  road,  or  some  other  sufficient  substi- 
tuted road,  to  be  put  into  a  permanently  substantial  con- 
dition, equally  convenient  as  tlie  former  road,  or  as  near 
thereto  as  circumstances  will  allow  ;  and  the  former  road 
shall  be  restored,  or  the  substituted  road  put  iuto  siicii 
condition  as  aforesaid,  as  the  case  may  be,  within  tlie  fol- 
lowing periods  after  the  first  operation  on  tlie  former  road 
shall  have  been  commenced,  unless  tlie  trustees  or  parties 

(ft)  As  to  scope  and  opeiation  of  closely  similar  clause  in  pre- 
existing acts,  see  Treatise,  p.  99,  et  secj. 

(i)  As  to  wiio  meant  by  owner  in  this  clause,  see  Treatise, 
lb. 


clxxxii  Appendix — Statutes. 

having  the  management  of  the  road  to  be  restored,  by 
writing  under  their  hands,  consent  to  an  extension  of  the 
period,  and  in  such  case  within  such  extended  period ; 
(that  is  to  say, )  if  the  road  be  a  turnpike  road,  within 
six  months,  and  if  the  road  be  not  a  turnpike  road,  within 
twelve  months.  (A) 
Penalty  for  57.  If  any  such  road  be  not  so  restored,  or  the  substi- 
restorVroad.  t^^ed  road  SO  Completed  as  aforesaid,  within  the  periods 
herein  or  in  the  special  act  fixed  for  that  purpose,  the 
company  shall  forfeit  to  the  trustees,  commissioners,  sur- 
veyor, or  other  person  having  the  management  of  the 
road  interfered  with  by  the  company,  if  a  public  road,  or 
if  a  private  road  to  the  owner  thereof,  rive  pounds  for 
every  day  after  the  expiration  of  sucli  periods  respectively 
during  which  such  road  shall  not  be  so  restored  or  the 
substituted  road  completed ;  and  it  shall  be  lawful  for 
the  justices  by  whom  any  such  penalty'  is  imposed  to  order 
the  whole  or  anj'  part  thereof  to  be  laid  out  in  executing 
the  work  in  respect  whereof  such  penalty  was  in- 
curred. (I). 
Company  to  58.  If  in  the  course  of  making  the  railway  the  com- 
used'byThem  P^'^Y  ^^^^  ^se  or  interfere  with  any  road  they  shall  from 
'  time  to  time  make  good  all  damage  done  by  them  to  such 
road ;  and  if  any  question  shall  arise  as  to  the  damage 
done  to  any  such  road  by  the  company,  or  as  to  the  re- 
pair thereof  by  them,  such  question  shall  be  referred  to 
the  determination  of  two  justices  j  and  such  justices  maj" 
direct  such  repairs  to  be  made  in  the  state  of  such  road, 
in  respect  of  the  damage  done  by  the  company,  and 
within  such  period  as  they  think  reasonable,  and  may 
impose  on  the  company,  for  not  carrying  into  effect  such 
repairs,  any  penalty  not  exceeding  five  pounds  per  daj-  as 
to  such  justices  shall  seem  just ;  and  such  penalty  shall  be 
paid  to  the  surveyor  or  other  person  having  the  manage- 
ment of  the  road  interfered  with  by  the  companj-,  if  a 
public  road,  and  be  applied  for  the  purposes  of  such  road, 
or  if  a  private  road  the  same  shall  be  paid  to  tlie  owner 
thereof:  provided  always,  that,  in  determining  any  such 
question  with  regard  to  a  turnpike  road,  the  said  justices 
shall  have  resfard  to  and  and  shall  make  full  allowance 


(Ji)  As  to  what  meant  by  restoring  road,  see  Treatise,  p.  105  ; 
and  when  new  road  may  be  deemed  as  convenient  as  old,  Sec, 
see  Treatise,  p.  101,  et  seq. 

(/)  See  note  (i),  ante,  p.  elxxxi. 


8  Fict.  c.  20 — Railways  Clauses.  clxxxiii 

for  any  tolls  that  may  have  been  paid  by  the  company  on 
such  road  in  the  course  of  the  using  thereof. 

59.  When  the  company  shall  intend  to  apply  for  the  Proceedings 
consent  of  two  justices,  as  hereinbefore  provided,  so  as  to  uon  f^'jus" 
authorize  them  to  carry  the  railway  across  any  highway  tices  to  con- 
other  than  a  public  carriage  road  on  the  level,  they  shall,  *''"' '°  '*''^' 
fourteen  days  at  least  previous  to  the  holding  of  the  petty  brwieways 
sessions  at  which  such  application  is  intended  to  be  made,  ='"<'  footways, 
cause  notice  of  such  intended  application  to  be  given  in 

some  newspaper  circulating  in  the  county,  and  also  to  be 
affixed  upon  the  door  of  the  parish  church  of  the  parish 
in  which  such  crossing  is  intended  to  be  made,  or  if  there 
be  no  such  church  some  other  place  to  which  notices  are 
usually  affixed  ;  and  if  it  appear  to  any  two  or  more 
justices  acting  for  the  district  in  which  such  highway  at 
the  proposed  crossing  thereof  is  situate,  and  assembled 
in  petty  sessions,  after  such  notice  as  aforesaid,  that  the 
railway  can,  consistently  with  due  regard  to  the  public 
safety  and  convenience,  be  earned  across  such  highway 
on  the  level,  it  shall  be  lawful  for  sucli  justices  to  consent 
that  the  same  maj'  be  so  carried  accordingly. 

60.  If  eitlier  party  shall  feel  aggrieved  by  tlie  deter-  Appeal 
mination  of  such  justices  upon  any  such  application  as  against  the 
aforesaid,  it  shall  be  lawful  for  such  party,  in  like  man-  of  ihe'jusMces'. 
ner  and  subject  to  the  like  conditions  as  are  liereinaffer 
provided  in  the  case  of  appeals  in  respect  of  penalties 

and  forfeitures,  to  appeal  to  the  quarter  sessions  of  the 
county  or  place  in  which  the  cause  of  appeal  sliall  have 
arisen  ;  and  it  shall  be  lawful  for  the  justices  in  such 
quarter  sessions,  upon  the  hearing  of  such  appeal,  either  to 
confirm  or  quash  the  determination,  or  to  make  such  order 
in  regard  to  the  method  of  carrying  tiie  rail wa\' across 
such  "highway  as  aforesaid,  as  to  them  shall  seem  fit,  and 
to  make  such  order  concerning  the  costs  both  of  the  ori- 
ginal application  and  of  the  appeal  as  to  them  shall  seem 
reasonable. 

61.  If  the  railway  shall  cross  any  highway  otiier  than  Company  lo 

,_.  .  J  ,,         1,1  iiii  make  •uHi- 

a  public  carnage  way  on  the  level,  the  company  sliall  at  ^,^^^^  ,p. 
their  own  expense  make  and  at  all  times  luaintain  con-  proaci.<-»  ami 
venient  ascents  and  descents  and  other  convenient  ap- J;j;;;;,''^y,",J'^- 
proaches,   with  handrails  or  other  fences,  and  sliall  it'rooiwayi 
such  highway  be  a  bridleway,  erect  and  at  all  times  main-  ;',',';';^;!y' 
tain  good  and  sufficient  gates,  and  if  the  same  sliall  bo  a 
footway,   good  and  sufficient  gates  or  stil(!s,    on   each 
side  of  the  railway  w^here  the  higiiway  shall  communi- 
cate therewith. 


clxxxiv 

Justices  to 
have  power 
to  order  ap- 
proaches and 
fences  to  be 
made  to  high 
ways  crossint 
on  the  level. 


Screens  for 

Turnpike 

Roads. 

Screen  for 
roads  to  be 
made,  if  re- 
quired by  the 
Board  of 
Trade. 


Penalty  for 
failing  to 
construct. 


/Appendix — Statutes. 

62.  If,  where  the  railway  shall  cross  any  highway  on 
the  level,  the  company  fail  to  make  convenient  ascents 
and  descents  or  other  convenient  approaches,  and  such 
handrails,  fence,  gates  and  stiles  as  they  are  hereinbefore 
required  to  make,  it  shall  be  lawful  for  two  justices,  on 
the  application  of  the  surveyor  of  roads,  or  of  any  two 
householders  within  the  parish  or  district  where  such 
crossing  shall  be  situate,  after  not  less  than  ten  days 
notice  to  the  company,  to  order  the  company  to  make 
such  ascent  and  descent  or  other  approach,  or  such  hand- 
rails, fences,  gates,  or  stiles  as  aforesaid  within  a  period  to 
be  limited  for  that  purpose  by  such  justices ;  and  if  the 
company  fail  to  comply  with  such  order  they  shall  forfeit 
five  pounds  for  every  day  that  they  fail  so  to  do  ;  and  it 
shall  be  lawful  for  the  justices  by  whom  any  such  pe- 
nalty is  imposed  to  order  the  whole  or  any  part  thereof  to 
be  applied,  in  such  manner  and  by  such  person  as  they 
think  fit,  in  executing  the  work  in  respect  whereof  such 
penalt}^  was  incurred. 

63.  If  the  commissioners  or  trustees  of  any  turnpike 
road,  or  the  surveyor  of  any  highway,  apprehend  danger 
to  the  passengers  on  such  road,  in  consequence  of  horses 
being  frightened  by  the  sight  of  the  engines  or  carriages 
travelling  upon  the  railway,  it  shall  be  lawful  for  such 
commissioners,  or  trustees,  or  surveyor,  after  giving 
fourteen  days  notice  to  the  company,  to  apply  to  the 
Board  of  Trade  with  respect  thereto ;  and  if  it  shall  appear 
to  the  said  board  that  such  danger  might  be  obviated  or 
lessened  by  the  construction  of  any  works  in  the  nature 
of  a  screen  near  to  or  adjoining  the  side  of  such  road,  it 
shall  be  lawful  for  them,  if  they  shall  think  fit,  to  certify 
the  works  necessary  or  proper  to  be  executed  by  the 
company  for  the  purpose  of  obviating  or  lessening  such 
danger,  and  by  such  certificate  to  require  the  company 
to  execute  such  works  withhi  a  certain  time  after  the 
service  of  such  certificate,  to  be  appointed  by  the  said 
board. 

64.  Where  by  any  such  certificate  as  aforesaid  the 
company  shall  have  been  required  to  execute  any  such 
work  in  the  nature  of  a  screen,  they  shall  execute  and 
complete  the  same  within  the  period  appointed  for  that 
purpose  in  such  certificate  :  and  if  they  fail  so  to  do  they 
shall  forfeit  to  the  said  commissioners,  or  trustees,  or  sur- 
veyor, five  pounds  for  every  day  during  Avhich  such  works 
shall  remain  uncompleted  beyond  the  period  so  appointed 


8  Vict.  c.  20— Railways  Clauses.  clxxxv 

for  their  completion  ;  and  it  shall  be  lawful  for  the  jus- 
tices by  whom  any  such  penalty  is  imposed  to  order  the 
whole  or  any  part  thereof  to  be  "laid  out  in  executing  the 
Avork  in  respect  whereof  such  penalty  was  incurred." 

65.  Where,  under  the  provisions  of  this  or  the  special  Construe 
act,  or  any  act  incorporated  therewith,  the  company  are  tion  of  ' 
required  to  maintain  or  keep  in  repair  any  bridge,  fence.  Bridges. 
approach,  gate,  or  other  work  executed  by  them,  it  shall  Jnsiices  to  * 
be  lawful  for  two  justices,  on  the  application  of  the  sur-  fo^order'"''' 
vej^or  of  roads,  or  of  any  two  householders  of  the  parish  repairer 

or  district  where  such  work  may  be  situate,  complaining  bridges,  &c. 
that  any  such  work  is  out  of  riepair,  after  not  less  than 
ten  days  notice  to  the  company,  to  order  the  company  to 
put  such  work  into  complete  repair  within  a  period  to  be 
limited  for  that  purpose  by  such  justices  ;  and  if  the  com- 
pany fail  to  comply  with  such  order,  they  shall  forfeit 
five  pounds  for  every  day  that  they  fail  so  to  do ;  and  it 
shall  be  lawful  for  the  justices  by  whom  any  such  penalty 
is  imposed  to  order  the  whole  or  any  part  thereof  to  be 
applied,  in  such  manner  and  by  such  persons  as  they 
think  fit,  in  putting  such  work  into  repair. 

66.  And  whereas  expense  miglit  frequently  be  avoided,  Board  of 
and  public  convenience  promoted,  by  a  reference  to  tlio  Trade  em- 
Board  of  Trade  upon  the  construction  of  public  works  of  J'n^Jri^fy'thc" 
an  engineering  nature  connected  with  the  railway,  wliere  construciion 
a  strict  compliance  with  the  provisions  of  this  or  the  spe-  "og""*'" 
cial  act  might  be  impossible,  or  attended  with  inconve-  bridges,  &c., 
nience  to  the  company,  and  without  adequate  advantage  where  a  strict 
to  the  public  ;  be  it  enacted,  that  in  case  any  difi'erence  >viUiMre"act 
in  regard  to  the  construction,  alteration,  or  restoration  of  is  impossible 
any  road  or  bridge,  or  other  public  Avork  of  an  engineer- 
ing  nature,  required  by  the  provisions  of  this  or  the  s])ccial 
act,  shall  arise  between  the  company  and  any  trustees, 
commissioners,   surveyors,  or  other  persons  having  tlic 
control  of  or  being  autliorized  by  law  to  enforce  tlic  con- 
struction of  such  road,  bridge,  or  work,  it  shall  be  lawful 
for  either  party,   after  giving  fourteen  days  notice   in 
writing  of  their  intention  so  to  do  to  tlie  other  party,  to 
apply  to  the  Board  of  Trade  to  decide  upon  tlie  i)roi)(T 
manner  of  constructing,  altering,  or  restoring  siicli  road, 
bridge,  or  otlier  work  ;  and   it  shall  be  lawful  for  the 
Board  of  Trade,  if  they  shall  think  fit,  to  decide  the  same 
accordingly,  and  to  autliorize,  Ijy  certificate  in  writing, 
any  arrangement  or  mode  of  construction  in  rcganl  to 
any  such  road,  bridge,  or  otlier  work  which  sliall  apjicar 


or  iDconve- 
iiitiii. 


clxxxvi 


Appendix — Statutes. 


Authentica 
tion  of  cer- 
tificates of 


to  them  either  to  be  in  substantial  compliance  with  tlie 
provisions  of  this  and  the  special  act,  or  to  be  calculated 
to  aiFord  equal  or  greater  accommodation  to  the  public 
using  such  road,  bridge,  or  other  work ;  and  after  any- 
such  certificate  shall  have  been  given  by  the  Board  of 
Trade,  the  road,  bridge,  or  other  work  therein  mentioned 
shall  be  constructed  by  the  company  in  conformity  with, 
the  terms  of  such  certificate,  and  being  so  constructed 
shaU  be  deemed  to  be  constructed  in  conformity  with  the 
provisions  of  this  and  the  special  act :  provided  always, 
that  no  such  certificate  shall  be  granted  by  the  Board  of 
Trade,  unless  they  shall  be  satisfied  that  existing  private 
rights  or  interests  will  not  be  injuriously  afiected  thereby. 
67.  And  be  it  enacted,  that  all  regulations,  certificates, 
notices,  and  other  documents  in  writing  purporting  to  be 
the  Board  of  made  or  issued  by  or  by  the  authority-  of  the  Board  of 
Trade,  ser^ce  Trade,  and  signed  by  some  officer  appointed  for  that  pur- 
'  ■  pose  by  the  Board  of  Trade,  shall,  for  the  purposes  of  this 
and  the  special  act,  and  any  act  incoii^orated  therewith, 
be  deemed  to  have  been  so  made  and  issued,  and  that 
without  proof  of  the  authority  of  the  person  signing  the 
same,  or  of  the  signature  thereto,  which  matters  shall  be 
presumed  uutil  the  contrarj^  be  proved ;  and  service  of 
any  such  document,  bj^  leaving  the  same  at  one  of  the 
principal  offices  of  the  railway  companj',  or  by  sending 
the  same  by  post  addressed  to  the  secretarj-  at  such  office, 
shall  be  deemed  good  service  upon  the  company' ;  and  all 
notices  and  other  documents  reriuu-ed  by  this  or  the  special 
act  to  be  given  to  or  laid  before  the  Board  of  Trade  shall 
be  delivered  at,  or  sent  by  post  addressed  to,  tlie  office 
of  the  Board  of  Trade  in  London. 


Works  for 
Protection 
and  Accom- 
modation 
of  Lands, 


Gates, 
bridges,  &c. 


And  witli  respect  to  works  for  the  accommodation  of 
lands  adjoining  tlie  railway,  be  it  enacted  as  follows  : 

68.  The  company  shall  make  and  at  all  times  there- 
after maintain  the  following  works  for  the  accommoda- 
tion of  the  owners  and  occupiers  of  lands  adjoining  the 
railway  ;  (that  is  to  say, ) 

Such  and  so  many  convenient  gates,  (m)  bridges, 
arches,  culvei'ts,  and  passages,  over,  under,  or  by 
the  sides  of  or  leading  to  or  from  the  railway  as  shall 
be  necessary  for  the  purpose  of  making  good  any 
interruptions  caused  by  the  railway  to  the  use  of  the 

(m)  See  ante,  5  Sc  6  Vict.  c.  55,  s.  10  ;  ante,  p.  346. 


J 


8  Vict.  c.  20 — Railways  Clauses.  clxxxvii 

lands  through  which  the  railway  shall  be  made  : 
and  such  works  shall  be  made  forthwith  after  the 
part  of  the  railway  passing  over  such  lands  shall 
have  been  laid  out  or  formed,  or  during  the  forma- 
tion thereof: (w) 
Also  sufficient  posts,  rails,  hedges,  ditches,  mounds,  or  Fences : 
other  fences  for  separating  the  land  taken  for  the  use 
of  the  railway  from  the  adjoining  lands  not  taken, 
and  protecting  such  lands  from  trespass,  or  the  cattle 
of  the  owners  or  occupiers  thereof  from  strayino' 
thereout,  by  reason  of  the  railway,  together  with  all 
necesssary  gates  made  to  open  towards  such  adjoin- 
ing land,  and  not  towards  the  railway,  and  all  ne- 
cessary stiles ;  and  such  posts,  rails,  and  other  fences 
shall  be  made  forthwith  after  the  taking  of  any  such 
lands,  if  the  owners  thereof  shall  so  require,  and  the 
said  other  works  as  soon  as  conveniently  may  be : 
Also  necessary  arches,  tunnels,  culverts,   drains,  or  oiains: 
other  passages,  either  over  or  under,  or  by  the  sides 
of  the  railway,  of  such  dimensions  as  will  be  suffi- 
cient at  all  times  to  convey  the  water  as  clearlj^  from 
the  lands  lying  near  or  affected  by  the  railway  as 
before  the  making  of  the  railway,  or  as  nearly  so  as 
maj^  be  ;  and  such  works  shall  be  made  from  time 
to  time  as  the  railway  works  proceed  : 
Also  proper  watering  places  for  cattle  where  by  reason  Watering 
of  the  railway  the  cattle  of  any  person  occupying  places: 
any  lands  lying  near  thereto  shall  be  deprived  of 
access  to  their  former  watering  places:  and  suclx 
watering  places  shall  be  so  made  as  to  be  at  all  times 
as  sufficiently  supplied  with  water  as  theretofore,  and 
as  if  the  railway  had  not  been  made,  or  as  nearly  so 
as  may  be  ;  and  the  company  shall  make  all  neces- 
sary watercourses  and  drains  for  tlie  purpose  of  con- 
veying water  to  tlie  said  watering  places  : 
Provided  always,  that  the  company  sliall  not  be  required 
to  make  such  accommodation  works  in  such  a  nianner  as 
would  prevent  or  obstruct  the  working  or  using  of  the 
railway,  nor  to  make  any  accommodation   works  witli 
respect  to  which  the  owners  and  occupiers  of  tlie  lands 
shall  have  agreed  («)  to  receive  and  shall  have  been  paid 
compensation  instead  of  the  making  them. 

(n)  As  to  the  making  of  communications,  and  the  right  of  the 
owner  to  cross  in  the  interim,  see  Treatise,  pp.  121,  122. 
(o)  See  ante,  p.  122. 


clxxxviii 

Differences 
as  to  accom- 
modation 
works  to  be 
settled  by 
justices. 


Execntion  of 
works  by 
owners  on  de- 
fault by  the 
company. 


Appendix — Statutes. 

69.  If  any  difterence  arise  respecting  the  kind  or 
number  of  any  such  accommodation  works,  or  the  di- 
mensions or  sufficiency  thereof,  or  respecting  the  main- 
taining thereof,  the  same  shall  be  determined  by  two 
justices  ;  and  such  justices  shall  also  appoint  the  time 
within  which  such  v.orks  shall  be  commenced  and  exe- 
cuted by  the  company. 

70.  If  for  fourteen  daj^s  next  after  the  time  appointed 
by  such  justices  for  the  commencement  of  any  such  works 
the  company  shall  fail  to  commence  such  works,  or  having 
commenced  shall  fail  to  proceed  diligently  to  execute  the 
same  in  a  sufficient  manner,  it  shall  be  lawful  for  the  partj' 
aggrieved  by  such  failure  himself  to  execute  such  works 
or  repairs  :  and  the  reasonable  expenses  thereof  shall  be 
repaid  by  the  company  to  the  party  by  whom  the  same 
shall  so  have  been  executed  ;  and  if  there  be  any  dispute 
about  such  expenses  the  same  shall  be  settled  by  two  jus- 
tices ;  provided  always,  that  no  such  owner  or  occupier 
or  other  person  shall  obstruct  or  injure  the  railway,  or 
any  of  the  works  connected  therewith,  for  a  longer  time 
nor  use  them  in  any  other  manner  than  is  unavoidably 
necessary  for  the  execution  or  repair  of  such  accommo- 
dation works. 

Power  to  71 .  If  any  of  the  owners  or  occupiers  of  lands  affected 

owners  of  Y)y  sucli  railway  shall  consider  the  accommodation  works 
additional  ac-  made  by  the  company,  or  directed  by  such  justices  to  be 
commodaiion  made  by  the  company,  insufficient  for  the  commodious 
^'"^''^'  use  of  their  respective  lands,  it  shall  be  lawful  for  any 

such  owner  or  occupier,  at  any  time,  at  his  own  expense, 
to  make  such  further  works  for  that  purpose  as  he  shall 
think  necessary,  and  as  shall  be  agreed  to  by  the  com- 
pany, or,  in  case  of  difference,  as  shall  be  authorized  by 
two  justices. 
Such  works        72.  If  the  company  so  desire,  all  such  last-mentioned 
to  be  con-      accommodation  works  shall  be  consti'ucted  under  the  su- 
der 'ihe'^sHper-  perintendence  of  their  engineer,  and  according  to  plans 
intendence  of  and  specifications  to  be  submitted  to  and  approved  by 
"^  such  engineer:  nevertheless  the  company  shall  not  be 

entitled  to  require,  either  that  plans  should  be  adopted 
which  would  involve  a  greater  expense  than  that  incurred 
in  the  execution  of  similar  works  by  the  company,  or  that 
the  plans  selected  should  be  executed  in  a  more  expensive 
manner  than  that  adopted  in  similar  cases  by  the  corn- 
pan  j*. 
Accommoda-  73.  The  Company  shall  not  be  compelled  to  make  any 
tion  works      further  or  additional  accommodation  works  for  the  use  of 


the  com- 
pany's en- 
gineer. 


8  Vict.  c.  20— Railwmjs  Clauses.  clxxxix 

owners  and  occupiers  of  land  adjoining  the  railway  after  "o'  «<>  be  re. 
the  expiration  of  the  prescribed  period,  or,  if  no  period  T"^'^  ^'^^^ 
be  prescribed,  after  five  years  from  the  completion  of  tlie    ^^  ^""' 
works,  and  the  opening  of  the  railway  for  public  use. 

74.  Until  the  company  shall  liave  made  the  bridges  or  Owners  to  be 
other  proper  communications  which  tliey  shall  under  the  *"o«'6'i  to 
provisions  herein,  or  in  the  special  act,  or  any  act  incor-  commodalion 
porated  therewith,  contained,  have  been  required  to  make  works  are 
between  lands  intersected  by  the  raih\ay,  and  no  longer  "'"'**• 
the  owners  and  occupiers  of  such  lands,  and  any  other 
persons  whose  right  of  way  shall  be  affected  by  the  want 
of  such  communication,  and  their  respective  servants,  may 
at  all  times  freely  pass  and  repass,  with  carriages,  horses 
and  other  animals,  directly  (but  not  otherwise)  across  the 
part  of  the  railway  made  in  or  tlirough  their  respective 
lands,  solely  for  the  purpose  of  occupying  the  same  lands, 
or  for  the  exercise  of  such  right  of  way,  and  so  as  not  to 
obsti-uct  the  passage  along  the  railway,  or  to  damage  the 
same  ;  nevertheless,  if  the  owner  or  occupier  of  any  such 
lands  have  in  his  arrangements  with  the  company  received 
or  agreed  to  receive  compensation  for  or  on  account  of 
any   such  communications,   instead  of  the  same  being- 
formed,  such  owner  or  occupier,  or  those  claiming  under 
liim,  shall  not  be  entitled  so  to  cross  the  railway,  (p) 

75.  If  any  person  omit  to  shut  and  fasten  any  gate  set  Penalty  on 
up  at  either  side  of  the  railway,  for  the  accommodation  pe^ons 
of  the  owners  or  occupiers  of  the  adjoining  lands,  as  soon  gates." 
as  he,  and  the  carriage,  cattle,  or  other  animals,  under 

his  care,  have  passed  through  the  same,  he  sliall  forfeit 
for  every  such  offence  any  sum  not  exceeding  forty  siiil- 

lings.  Braitch 

Railways. 

76.  And  be  it  enacted,  that  this  or  tlie  special  act  sliall  Power  to 
not  prevent  the  owners  or  occupiers  of  lands  adjoining  n"k"p'1y3„ 
to  the  railway,  or  any  other  persons,  from  laying  down,  branch  rail- 
either  upon  their  own  lands  or  upon  the  lands  of  other  ways  connnii 

^     .  1      ,  ,      n  ^  11    i        1  iiicatine  wiih 

persons,  with  the  consent  oi  such  persons,  any  collateral  ,he  railway, 
branches  of  railway  to  communicate  with  the  railway,  for  5  &  a  Vict, 
the  purpose  of  bringing  carriages  to  or  from  or  u])on  the  "^'  ''" 
railway,  but  under  and  subject  to  the  provisions  and  re- 
strictions of  an  act  passed  in  the  sixth  year  of  the  reign 
of  her  present  Majesty,  intituled  "An  Act  for  the  bet- 

(p)  See  note  (n),  ante,  p.  clxxxvii.  As  to  what  has  been  held  an 
arrangement  under  a  particular  railway  act,  such  as  to  take  away 
the  right  of  the  owner  to  cross  the  railway,  see  Treatise,  p.  122. 


oinit- 
asteii 


and  condi' 
tiooe, 


Appendix — Statutes.  ■ 

ter  Regulation  of  Railways,  and  for  the  Conveyance  of 
Troops  :"  and  the  company  shall,  if  required,  at  the  ex- 
pense of  such  owners  and  occupiers  and  other  persons, 
and  subject  also  to  the  propulsions  of  the  said  last-men- 
tioned act,  make  openings  in  the  rails,  and  such  additional 
lines  of  rail  as  may  be  necessary  for  effecting  such  commu- 
nication, in  places  where  the  communication  can  be  made 
with  safety  to  the  public,  and  without  injui-y  to  the  rail- 
way, and  without  inconvenience  to  the  traffic  thereon  ; 
and  the  company  shall  not  take  any  rate  or  toll  or  other 
monies  for  the  passing  of  any  passengers,  goods,  or  other 
things  along  any  branch  so  to  be  made  by  any  such  owner 
or  occupier  or  other  person ;  but  this  enactment  shall  be 
subject  to  the  follow  ing  restrictions  and  conditions ;  (that 
is  to  say,) 
Restrictions  ?v^o  such  branch  railway  shall  run  parallel  to  the  rail- 
way : 
The  company  shall  not  be  bound  to  make  any  such 
openings  in  any  place  which  they  shall  have  set  apart 
for  any  specific  purpose  with  which  such  communi- 
cation would  interfere,  nor  upon  any  inclined  plane 
or  bridge,  nor  in  any  tunnel : 
The  persons  making  or  using  such  branch  railways 
shall  be  subject  to  all  bye-laws  and  regulations  of 
the  company  from  time  to  time  made  with  respect  to 
passing  upon  or  crossing  the  railway,  and  otherwise  ; 
and  the  persons  making  or  using  such  branch  rail- 
w-ays  shall  be  bound  to  construct,  and  from  time  to 
time,  as  need  may  require,  to  renew,  the  offset  plates 
and  swdtclies  according  to  the  most  approved  plans 
adopted  by  the  company,  and  under  the  direction 
of  their  engineer,  {q) 

Working        And  with  respect  to  mines  lying  under  or  near  the  rail- 

of  Mines,    way,  be  it  enacted  as  follows  : 

Company  not      ^7.  The  Company  shall  not  be  entitled  to  any  mines  of 

to  be  entitled  coals,  ironstoue,  slate,  or  other  minerals  under  any  land 

to  mineralf.    purchased  by  them,  except  only  sucli  parts  thereof  as 

shall  be  necessary-  to  be  dug  or  carried  away  or  used  in 

the  construction  of  the  works,  unless  the  same  shall  have 

been  expressly  purchased ;  aud  all  such  mines,  excepting 

as  aforesaid,  shall  be  deemed  to  be  excepted  out  of  the 

(q)  As  to  the  operation  of  analogous  clause  in  particular  rail- 
way acts,  see  Treatise,  p.  124. 


8  Vict.  c.  20 — Railway  a  Clauses.  cxci 

conveyance  of  such  lands,  unless  they  shall  liave  been 
expressly  named  therein  and  conveyed  thereby,  (r) 

78.  If  the  owner,  lessee,  or  occupier  of  any  mhies  or  Mines  lying 
minerals  lying  under  the  railway,  or  any  of  the  works  "*^''  "'^  '^*''" 
connected  therewith,  or  Avithin  the  prescribed  distance,  be  worked"  if 
or,  where  no  distance  shall  be  prescribed,  forty  yards  ""^  company 
therefrom,  be  desirous  of  working  the  same,  such  owner,  pulcha'se" 
lessee,  or  occupier  shall  give  to  the  company  notice  in  them, 
writing  of  his  intention  so  io  do  tliirty  days  before  the 
commencement  of  working  ;  and  upon  the  receipt  of  such 
notice  it  shall  be  lawful  for  the  company  to  cause  such 
mines  to  be  inspected  by  any  person  appointed  bv  them 
for  the  purpose  ;  and  if  it  appear  to  the  company  that 
the  working  of  such  mines  or  minerals  is  likely  to  damage 
the  works  of  the  railway,  and  if  the  company  be  willing 
to  make  compensation  for  such  mines  or  any  part  thereof 
to  such  owner,  lessee,  or  occupier  thereof,  then  he  shall 
not  work  or  get  the  same  ;  and  if  the  company,  and  sucli 
owner,  lessee,  or  occupier,  do  not  agree  as  to  the  amount 
of  such  compensation,  the  same  shall  be  settled  as  in 
other  cases  of  disputed  compensation. 

79.  If  before  the  expiration  of  such  thirt}^  days  the  if  company 
company  do  not  state  their  willingness  to  treat  with  such  "twilling  to 
owner,  lessee,  or  occupier  for  the  payment  of  such  com-  ,uvnerm'ay 
pensation,  it  shall  be  lawful  for  him  to  work  tlie  said  work  iiie 
mines  or  any  part  thereof  for  which  the  company  siiall  """'^'• 
not  have  agreed  to  paj'  compensation,  so  that  the  same 
be  done  in  a  manner  proper  and  necessary  for  the  bene- 
ficial working  thereof,  and  according  to  the  usual  manner 
of  working  such  mines  in  the  district  where  tlie  sanu; 
shall  be  situate ;  and  if  any  damage  or  obstruction  be 
occasioned  to  the  railway  or  works  by  improi)er  working- 
of  such  mines,  the  same  shall  be  forthwith  repaired  or 
removed,  as  the  case  may  require,  and  sucli  damage  made 
good,  by  the  owner,  lessee,  or  occupier  of  such  mines  or 
minerals,  and  at  his  OAvn  expense ;  and  if  such  repair  or 
removal  be  not  forthwith  done,  or,  if  the  company  shall 
so  think  fit,  without  waiting  for  the  same  to  be  doni;  l)y 
such  owner,  lessee,  or  occupier,  it  shall  be  lawful  for  the 
company  to  execute  the  same  and  recover  from  sucli 
owner,  lessee,  or  occupier  the  expense  occasioned  thereby, 
by  action  in  any  of  the  superior  courts. 

80.  If  the  working  of  any  such  mines  under  the  rail-  Alii.ing  com. 

on   llic 
subject  ( 


(r)  As  to  provisions  in  particular  railway  acts,  etc., 
ibject  of  mines,  see  Treatise,  pp.  1 18,  et  seq. 


cxcu 


Company  to 
make  com- 
pensation for 
injury  done 
to  mines; 


and  also  for 
any  airway 
or  other  work 
made  neces- 
sary by  the 
railway. 


Power  to 
company  to 


Appendix — Statutes. 

way  or  works,  or  within  the  above-mentioned  distance 
therefrom,  be  prevented  as  aforesaid  by  reason  of  appre- 
hended injury  to  the  railway,  it  shall  be  lawful  for  the 
respective  owners,  lessees,  and  occupiers  of  such  mines, 
and  whose  mines  shall  extend  so  as  to  lie  on  both  sides 
of  the  railwaj',  to  cut  and  make  such  and  so  many  air- 
ways, headways,  gateways,  or  water  levels  through  the 
mines,  measures,  or  strata,  the  working  whereof  shall  be 
so  prevented,  as  may  be  requisite  to  enable  them  to  ven- 
tilate, drain,  and  work  their  said  mines,  but  no  such  air- 
way, headway,  gateway,  or  water  level  shall  be  of  greater 
dimensions  or  section  than  the  prescribed  dimensions  and 
sections,  and  where  no  dimensions  shall  be  described  not 
greater  than  eight  feet  wide  and  eight  feet  high,  nor  shall 
the  same  be  cui;  or  made  upon  any  part  of  the  railway  or 
works,  or  so  as  to  injure  the  same,  or  to  impede  the  pas- 
sage thereon. 

81.  The  company  shall  from  time  to  time  pay  to  the 
owner,  lessee,  or  occupier  of  any  such  mines  extending 
so  as  to  lie  on  both  sides  of  the  railway  all  such  addi- 
tional expenses  and  losses  as  shall  be  incurred  by  such 
owner,  lessee,  or  occupier  by  reason  of  the  severance  of 
the  lands  lying  over  such  mines  by  the  railway,  or  of  the 
continuous  working  of  such  mines  being  interrupted  as 
aforesaid,  or  by  reason  of  the  same  being  worked  in  such 
manner  and  under  such  restrictions  as  not  to  prejudice  or 
injure  the  railway,  and  for  anj^  minerals  not  purchased 
by  the  company  which  cannot  be  obtained  by  reason  of 
making  and  maintaining  the  railway  ;  and  if  any  dispute 
or  question  shall  arise  between  the  company  and  such 
owner,  lessee,  or  occupier  as  aforesaid,  touching  the 
amount  of  such  losses  or  expenses,  the  same  shall  be  set- 
tled by  arbitration. 

82.  If  any  loss  or  damage  be  sustained  by  the  owner 
or  occupier  of  the  lands  lying  over  any  such  mines  the 
working  whereof  shall  have  been  so  prevented  as  afore- 
said (and  not  being  the  owner,  lessee,  or  occupier  of  such 
mines),  by  reason  of  the  making  of  any  such  airway  or 
other  work  as  aforesaid,  which  or  any  like  work  would 
not  have  been  necessary  to  be  made  but  for  the  working 
of  such  mines  having  been  so  prevented  as  aforesaid,  the 
company  shall  make  full  compensation  to  such  owner  or 
occupier  of  the  surface  lands  for  the  loss  or  damage  so 
sustained  by  him. 

83.  For  better  ascertaining  whether  any  such  mines 
are  being  worked  or  have  been  worked  so  as  to  damage 


8  Vict.  c.  20—Railwa7js  Clauses.  cxciii 

tlie  railway  or  works,  it  shall  be  lawful  for  the  company,  enter  and 
after  giving  twenty-four  hours  notice  in  writino-,  to  enter  '"spec  the 
upon  any  lands  through  or  near  which  the  railway  passes  mines"^  "^ 
wherein  any  such  mines  are  being  worked  or  are  sup- 
posed so  to  be,   and  to  enter  into  and  return  from  any 
such  mines  or  the  works  connected  therewith  ;  and  for 
that  purpose  it  shall  be  lawful  for  them  to  make  use  of 
any  apparatus  or  machinery  belonging   to  the  owner 
lessee,  or  occupier  of  such  mines,  and  to  use  all  neces- 
sary means  for  discovering  the  distance  from  the  railway 
to  the  parts  of  such  mines  which  are  being  worked  or 
about  so  to  be. 

84.  If  any  such  owner,  lessee,  or  occupier  of  any  such  Penalty  for 
mines  shall  refuse  to  allow  any  person  appointed  by  the  r^*^"**' '" 
company  for  that  purpose  to  enter  into  and  inspect  any  '"*'''"■ 
such  mines  or  works  in  manner  aforesaid,  every  person 

so  offending  shall  for  every  such  refusal  forfeit  to  the 
company  a  sum  not  exceeding  twenty  pounds. 

85.  If  it  appear  that  any  such  mines  have  been  worked  If  mines 
contrary  to  the  provisions  of  this  or  the  special  act,  the  '"'P^opef'y 

-PiU        iU-    1    J5i       •  ^-        X     ,1  '  worked, the 

company  may,  it  they  think  ht,  give  notice  to  the  owner,  company 
lessee,  or  occupier  thereof  to  construct  such  works  and  ""V  reqaire 
to  adopt  such  means  as  may  be  necessary  or  proper  for  "(lopled'for^ 
making  safe  the  railway,  and  preventing  injury  thereto  ;  '!>«  safety  of 
and  if  after  such  notice  any  such  owner,  lessee,  or  occu-  '""^  "''way- 
pier  do  not  forthwith  proceed  to  construct  the  works 
necessary  for  making  safe  the  railway,  the  company  may 
themselves  construct  such  works,   and  recover  the  ex- 
pense thereof  from  such  owner,  lessee,  or  occupier  by 
action  in  any  of  the  superior  courts. 

And  with  respect  to  the  carrying  of  passengers  and  Passengers 
goods  upon  the  railway,  and  the  tolls  to  be  taken  thereon,  and  Goods 
be  it  enacted  as  follows :  "«  Railway. 

86.  It  shall  be  lawful  for  the  company  to  use  and  em-  Company  to 
plov  locomotive  ensrines  or  otlier  moving  power,  and  employ  lo- 

■'•  J  °      ..     1.      1  II     1  *l  1         comolive 

carriages  and  waggons  to  be  drawn  or  propelled  tliorehy,  powt-r,  car- 
and  to  carry  and  convey  upon  the  railway  all  such  pus-  .iagcs,  &c. 
sengers  and  goods  as  shall  be  offered  to  them  for  thiit 
purpose,  and  to  make  such  reasonable  ciiarges  in  respect 
thereof  as  they  may  from  time  to  time  determine  upon, 
not  exceeding  the  tolls  by  the  special  act  authorized  to 
be  taken  by  them,  (s) 

(s)  As  to  what  not  reasonable  charges,  see  Treatise,  p.  317, 
318.  As  to  position  of  company  as  carriers  generally,  see  Trea- 
tise, p.  303,  et  seq. 

I  I 


CXCIV 

Company 
empowered 
to  contract 
with  other 
companies. 


Contracts 
not  to  affect 
persons  not 
parlies 
ibereto. 


Company  not 
to  be  liable 
to  a  gieater 
extent  than 
common  car- 
riers. 


Power  (0 
vary  tolls. 


Appendix — Statutes . 

87.  It  shall  be  lawful  for  the  company  from  time  to 
time  to  enter  into  any  contract  with  any  other  company, 
being  the  owners  or  lessees  or  in  possession  of  any  other 
railway,  for  the  passage  over  or  along  the  railway  by  the 
special  act  authorized  to  be  made  of  any  engines, 
coaches,  waggons,  or  other  carriages  of  any  other  com- 
pany, or  which  shall  pass  over  anj'  other  line  of  railway, 
or  for  the  passage  over  any  other  line  of  railway  of  any 
engines,  coaches,  Avaggons,  or  other  carriages  of  the 
company,  or  which  shall  pass  over  their  line  of  railway, 
upon  the  payment  of  such  tolls  and  under  such  conditions 
and  restrictions  as  may  be  mutually  agreed  upon ;  and 
for  the  purpose  aforesaid  it  shall  be  lawful  for  the  re- 
spective parties  to  enter  into  any  contract  for  the  division 
or  apportionment  of  the  tolls  to  be  taken  upon  their 
respective  railways. 

88.  Provided  always,  that  no  such  contract  as  afore- 
said shall  in  any  manner  alter,  aftect,  increase,  or  di- 
minish any  of  the  tolls  which  the  respective  companies, 
parties  to  such  contracts,  shall  for  the  time  being  be 
respectivelj'  authorized  and  entitled  to  demand  or  receive 
from  any  person  or  any  other  company,  but  that  all  other 
persons  and  companies  shall,  notwithstanding  anj'  such 
contract,  be  entitled  to  the  use  and  benefit  of  any  of  the 
said  railways,  upon  the  same  terms  and  conditions,  and 
on  payment  of  the  same  tolls,  as  they  would  have  been 
in  case  no  such  contract  had  been  entered  into. 

89.  Nothing  in  this  or  the  special  act  contained  shall 
extend  to  charge  or  make  liable  the  company  further  or 
in  any  other  case  than  where,  according  to  the  laws  of 
the  realm,  stage  coach  proprietors  and  common  carriers 
would  be  liable,  nor  shall  extend  in  any  degree  to  deprive 
the  company  of  any  protection  or  privilege  which  com- 
mon carriers  or  stage  coach  proprietors  may  be  entitled 
to  ;  but,  on  the  contrary,  the  company  shall  at  all  times 
be  entitled  to  the  benefit  of  every  such  protection  and 
privilege,  (t) 

90.  And  whereas  it  is  expedient  that  the  company 
should  be  enabled  to  vary  the  tolls  upon  the  railway  so 
as  to  accommodate  them  to  the  circumstances  of  the 
traffic,  but  that  such  power  of  varying  should  not  be 
used  for  the  purpose  of  prejudicing  or  favouring  particu- 
lar parties,  or  for  the  purpose  of  collusively  and  unfairly 
creating  a  monopoly,  either  in  the  hands  of  the  company 

(()  As  to  the  nature  and  extent  of  the  liability  of  the  com- 
pany as  carriers,  see  Treat.,  p.  306,  etseq. 


8  Fict.  c.  20— Railways  Clauses.  cxcv 

or  of  particular  parties  ;  it  shall  be  lawful,  therefore,  for 

the  company,  subject  to  the  provisions  and  limitations 

herein  and  in  the  special  act  contained,  from  time  to  time 

to  alter  or  vary  the  tolls  by  the  special  act  authorized  to 

be  taken,  either  upon  the  whole  or  upon  any  particular 

portions  of  the  railway,  as  they  shall  think  fit ;  provided 

that  all  such  tolls  be  at  all  times  charged  equally  (u)  to  Toiu  to  be 

all  persons,  and  after  the  same  rate,  whether  per  ton  per  "Charged 

mile  or  otherwise,  in  respect  of  all  passengers,  and  of  all  [ik?ci>c"iim!'^ 

goods  or  carriages  of  the  same  description,  and  conveyed  stances. 

or  propelled  by  a  like  carriage  or  engine,  passing  only 

over  the  same  portion  of  the  line  of  railway  under  the 

same  circumstances  ;  and  no  reduction  or  advance  in  any 

such  tolls  shall  be  made  either  directly  or  indu'ectly  in 

favour  of  or  against  anj^  particular  company  or  person 

travelling  upon  or  using  the  railway,  (x) 

91 .  And  whereas  authority  has  been  given  by  various  How  tolls  to 
acts  of  parliament  to  railway  companies  to  demand  tolls  wbere'^rau-'* 
for  the  conveyance  of  passengers  and  goods  and  for  other  ways  amai- 
services   over  the  fraction  of  a  mile  equal  to  the  toll  ?'<"""e''- 
which  they  are  authorized  to  demand  for  one  mile ;  there- 
fore, in  cases  in  which  any  railway  shall  be  amalgamated 

with  any  other  adjoining  railway  or  railways,  sucli  tolls 
shall  be  calculated  and  imposed  at  such  rates  as  if  such 
amalgamated  railways  had  originally  formed  one  line  of 
railway. 

92.  It  shall  not  be  lawful  for  the  company  at  any  time  Railway  to 
to  demand  or  take  a  greater  amount  of  toll,  or  make  any  ''«  ''"^  "" . 

a  .  „  '  ,  •    |>ayinent  of 

greater  charge  for  the  carriage  or  passengers  or  goods,  iuHj. 
than  they  are  by  this  and  the  special  act  authorized  to 
demand  ;  and  upon  payment  of  the  tolls  from  time  to 
time  demandable  all  companies  and  persons  shall  be  en- 
titled to  use  (y)  the  railway,  with  engines  and  carriages 
properly  constructed  as  by  this  and  the  special  act 
directed,  subject  nevertheless  to  the  provisions  and  re- 
strictions of  the  said  act  of  the  sixth  year  of  her  present 
Majesty,  intituled  "  An  Act  for  the  better  Regulation  of  5  .v  0  Vict. 
Railways,  and  for  the  Conveyance  of  Troops,"  and  to  =•  55- 

(u)  As  to  what  not  equal  charges,  &c.,  see  Treatise,  p.  318 
—320. 

(x)  This  clause  gives  a  power  to  companies  within  certain 
limits  to  vary  their  charges  so  as  to  accommodate  them  to  the 
circumstances  of  their  traffic,  a  power  which,  under  the  ohl  equal 
rate  clause,  they  did  not  enjoy.  See  Fifth  Report  of  Select 
Committees  on  Railways,  Minutes  of  Evidence,  p.  298. 

{y)  See  Treatise,  p.  298-390. 
I  I  2 


cxcvi  Appendix— Statutes. 

the  regulations  to  be  from  time  to  time  made  by  the  com- 
pany by  virtue  of  the  powers  in  that  behalf  hereby  and 
by  the  special  act  conferred  upon  them. 
List  of  lolls        93.  A  list  of  all  the  tolls  authorized  by  the  special  act 
bUed  on  a'       ^^  ^^  taken,  and  which  shall  be  exacted  by  the  company, 
board.  shall  be  published  by  the  same  being  painted  upon  one 

toll  board  or  more  in  distinct  black  letters  on  a  white 
ground,  or  white  letters  on  a  black  ground,  or  by  the 
same  being  printed  in  legible  characters  on  paper  affixed 
to  such  board,  and  by  such  board  being  exhibited  in 
some  conspicuous  place  on  the  stations  or  places  where 
such  tolls  shall  be  made  payable. 
Miiestoues.  94.  The  company  shall  cause  the  length  of  the  railway 
to  be  measured,  and  milestones,  posts,  or  other  con- 
spicuous objects  to  be  set  up  and  maintained  along  the 
whole  line  thereof,  at  the  distance  of  one  quarter  of  a 
mile  from  each  other,  with  numbers  or  marks  inscribed, 
thereon  denoting  such  distances. 
Tolls  to  be  95.  No  tolls  shall  be  demanded  or  taken  by  the  com- 

whUstToard   P^^Y  ^or  the  use  of  the  railway  during  any  time  at  which 
exhibited  and  the  boards  hereinbefore  directed  to  be  exhibited  shall  not 
mHestoDes      j^g  g^  exhibited,  or  at  which  the  milestones  hereinbefore 
directed  to  be  set  up  and  maintained  shall  not  be  so  set 
up  and   maintained ;    and  if  anj"-  pei-son  wilfully  pull 
down,  deface,  or  destroy  any  sucli  board  or  milestone, 
he  shall  forfeit  a  sum  not  exceeding  five  pounds  for  every 
such  offence. 
Tolls  to  be  96.  The  tolls  shall  be  paid  to  such  persons,  and  at  such 

r"*'''d'b'        places  upon  or  near  to  the  railway,  and  in  such  manner 
company! '  '^  ^^^  under  such  regulations,  as  the  company  shall,  by 

notice  to  be  annexed  to  the  list  of  tolls,  appoint. 
In  default  of       97.  If,  on  demand,  any  person  fail  to  pay  the  tolls  due 
t'oiu^Eood"*     "^  respect  of  any  carriage  or  goods,  it  shall  be  lawful  for 
&c.  may  be'     tlie  Company  to  detain  and  sell  such  carriage,  or  all  or 
detained  and   any  part  of  such  goods,  or,  if  the  same  shall  have  been 
removed  from  the  premises  of  the  company,  to  detain 
and  sell  any  other  carriages  or  goods  within  such  pre- 
mises belonging  to  the  partj^  liable  to  pay  such  tolls,  and 
out  of  the  monies  arisiug  from  such  sale  to  retain  the  tolls 
payable  as  aforesaid,  and  all  charges  and  expenses  of  such 
detention  and  sale,  rendering  the  overplus,  if  any,  of  the 
monies  arising  by  such  sale,  and  such  of  the  carriages  or 
goods  as  shall  remain  unsold,   to   tlie   person   entitled 
thereto,  or  it  shall  be  lawful  for  the  company  to  recover 
any  such  tolls  by  action  at  law. 
Account  of  98.  Every  person  being  the  owner  or  having  the  care 


8  Vict.  c.  20— Railways  Clauses.  cxcvii 

of  any  carriage  or  goods  passing  or  being  upon  the  rail-  lading,  &c.  to 
way,  shall,  on  demand,  give  to  the  collector  of  tolls,  at  ''^  ^'^*°' 
the  places  where  he  attends  for  the  purpose  of  receiving 
goods  or  of  collecting  tolls  for  the  part  of  the  railway  on 
which  such  carriage  or  goods  may  have  travelled  or  be 
about  to  travel,  an  exact  account  in  writing  signed  by 
him  of  the  number  or  quantity  of  goods  conveyed  by  any 
sucli  carriage,  and  of  the  point  on  the  railway  from 
which  such  carriage  or  goods  have  set  out  or  are  about 
to  set  out,  and  at  what  point  the  same  are  intended  to  be 
unloaded  or  taken  oft"  the  railway  :  and  if  the  goods  con- 
veyed by  any  such  carriage,  or  brought  for  conveyance 
as  aforesaid,  be  liable  to  the  payment  of  diff"erent  tolls, 
then  such  owner  or  other  person  shall  specify  the  re- 
spective numbers  or  quantities  thereof  liable  to  each  or 
any  of  such  tolls. 

99.  If  any  such  owner  or  other  such  person  fail  to  give  Penalty  for 
such  account,  or  to  produce  his  way-bill  or  bill  of  lading,  ""jou'nt  o^ 
to  such  collector  or  other  officer  or  servant  of  the  com-  lading, 
pany  demanding  the  same,  or  if  he  give  a  false  account, 
or  if  he  unload  or  take  oft'  any  part  of  his  lading  or  goods 
at  any  other  place  than  shall  be  mentioned  in  such  ac- 
count, with  intent  to  avoid  the  payment  of  any  tolls  pay- 
able in  respect  thereof,  he  shaii  for  every  such  oficnee 
forfeit  to  the  company  a  sura  not  exceeding  ten  pounds 
for  every  ton  of  goods,  or  for  any  parcel  not  exceeding 
one  hundred  weight,  and  so  in  proportion  for  any  less 
quantity  of  goods  than  one  ton,  or  for  any  parcel  exceed- 
ing one  hundred  weight,  (as  the  case  maybe,)  which 
shall  be  upon  any  such  carriage ;  and  such  penalty  sliall 
be  in  addition  to  the  toll  to  which  such  goods  may  be 
liable. 

100.  If  any  dispute  arise  concerning  the  amount  of  the  Disputes  as 
tolls  due  to  the  company,  or  concerning  the  charges  oc-  *y^'^^'^^"^ 
casioned  by  any  detention  or  sale  thereof  under  the  pro-  diargeable. 
visions  herein  or  in  the  special  act  contained,  the  same 

shall  be  settled  by  a  justice  ;  and  it  shall  be  lawful  tor 
the  company  in  the  meanwhile  to  detain  tlie  goods,  or  (it 
the  case  so  require)  the  proceeds  of  the  sale  thereof. 

101.  If  any  diff"erence  arise  between  any  toll  collector  Diriorcnccs 
or  other  officer  or  servant  of  the  company  and  any  owner  «^«j^,^|^^  ^.^_ 
of  or  person  bavins  the  charge  of  any  carriage  passing  or 

being  upon  the  railway,  or  of  any  goods  conveyed  or  to 
be  conveyed  by  such  carriage,  respecting  tlie  wtjight, 
quantity,  quality,  or  nature  of  such  goods,  such  collector 
or  other  officer  may  lawfully  detain  such  carnage  or 


CXCVllI 


Toll  collector 
to  be  liable 
for  wrongful 
detentioo  of 


Appendix — Statutes. 

goods,  and  examine,  weigh,  gauge,  or  otherwise  measure 
the  same ;  and  if  upon  such  measuring  or  examination 
such  goods  appear  to  be  of  greater  weight  or  quantity  or 
of  other  nature  than  shall  have  been  stated  in  the  account 
given  thereof,  then  the  person  who  shall  have  given  such 
account  shall  pay,  and  the  owner  of  such  carriage,  or  the 
respective  owners  of  such  goods,  shall  also,  at  the  option 
of  the  company,  be  liable  to  pay,  the  costs  of  such  mea- 
suring and  examining;  but  if  such  goods  appear  to  be  of 
the  same  or  less  weight  or  quantity  than  and  of  the  same 
nature  as  shall  have  been  stated  in  such  account,  then  the 
company  shall  pay  such  costs,  and  they  shall  also  pay  to 
such  owner  of  or  person  having  charge  of  such  carriage, 
and  to  the  respective  owners  of  such  goods,  such  damage 
(if  any)  as  shall  appear  to  any  justice,  on  a  summary  ap- 
plication to  him  for  that  purpose,  to  have  arisen  from  such 
detention. 

102.  If  at  any  time  it  be  made  to  appear  to  any  jus- 
tice, upon  the  complaint  of  the  company,  that  any  such 
detention,  measuring,  or  examining  of  any  carriage  or 
goods,  as  herein-before  mentioned,  was  without  reason- 
able ground,  or  that  it  was  vexatious  on  the  part  of  such 
collector  or  other  officer,  then  the  collector  or  other  officer 
shall  himself  pay  the  costs  of  such  detention  and  measur- 
ing, and  the  damage  occasioned  thereby  ;  and  in  default 
of  immediate  payment  of  any  such  costs  or  damage  the 
same  may  be  recovered  by  distress  of  the  goods  of  such 
collector,  and  such  justice  shall  issue  his  warrant  accord- 
ingly, 

103.  If  any  person  travel  or  attempt  to  travel  in  any 
carriage  of  the  company,  or  of  any  other  company  ci- 

fraiidron  the  P^rty  using  the  railway,  without  having  previously  paid 
company.        his  fare,  and  with  intent  to  avoid  payment  thereof,  or  if 
any  person,  having  paid  his  fare  for  a  certain  distance, 
knowingly  and  wilfully  proceed  in  any  such  carriage  be- 
yond such  distance,  without  previously  paying  the  addi- 
tional fare  for  the  additional  distance,  and  with  intent  to 
avoid  paj'ment  thereof,  or  if  any  person  knowingly  and 
wilfully  refuse  or  neglect,  on  arriving  at  the  point  to 
which  he  has  paid  his  fare,  to  quit  such  can-iage,  every 
such  person  shall  for  every  such  offence  forfeit  to  the  com- 
pany a  sum  not  exceeding  forty  shillings,  {z) 
Detention  of        104.  If  any  person  be  discovered,  either  in  or  after 
o  en  ers.        committing  or  attempting  to  commit  any  such  oftence  as 

(s)  This  clause  does  not  apply  to  a  case  of  a  mere  inability  to 
produce  a  ticket  as  distinguished  from  fraud. 


Penally  on 
passengers 
practising 


8  Vict.  c.  20— Railways  Clauses.  cxcix 

in  the  preceding  enactment  mentioned,  all  officers  and 
servants  and  other  persons  on  behalf  of  the  company,  or 
such  other  company  or  party  as  aforesaid,  and  all  consta- 
bles, gaolers,  and  peace  officers,  may  lawfully  apprehend 
and  detain  such  person  until  he  can  conveniently  be 
taken  before  some  justice,  or  until  he  be  otherwise  dis- 
charged by  due  course  of  law  (a). 

105.  No  person  shall  be  entitled  to  carry,  or  to  require  Penalty  for 
the  company  to  carry,  upon  the  railway,  any  aquafortis,  Jj""S'"g 
oil  of  vitriol,  gunpowder,  lucifer  matches,  or  any  other  goodron'ihe 
goods  which  in  the  judgment  of  the  company  may  be  of  "''"'*>• 

a  dangerous  nature  ;  and  if  any  person  send  by  the  rail- 
way any  such  goods  without  distinctly  marking  their  na- 
ture on  the  outside  of  the  package  containing  the  same, 
or  otherwise  giving  notice  in  writing  to  the  book-keeper 
or  other  servant  of  the  company  with  whom  the  same  are 
left,  at  the  time  of  so  sending,  he  shall  forfeit  to  the 
company  tAventy  pounds  for  every  such  oifence  ;  and  it 
shall  be  lawful  for  the  company  to  refuse  to  take  any 
parcel  that  they  may  suspect  to  contain  goods  of  a  dan- 
gerous nature,  or  require  the  same  to  be  opened  to  ascer- 
tain the  fact. 

106.  If  any  collector  of  tolls  or  other  officer  employed  Delivery  of 
by  the  company  be  discharged  or  suspended  from  his  p"*jeYs'on  or 
office,  or  die,  abscond,  or  absent  himself,  and  if  such  col-  custody  of 
lector  or  other  officer,  or  the  wife,  widow,  or  any  of  the  <o"  <:o"e<:'or 
family  or  representatives  of  any  such  collector  or  otiier 

officer,  refuse  or  neglect,  after  seven  days  notice  in  writ- 
ing for  that  purpose,  to  deliver  up  to  the  company,  or  to 
any  person  appointed  by  them  for  that  purpose,  any  sta- 
tion, dwelling-house,  office,  or  other  building,  witli  its 
appurtenances,  or  any  books,  papers,  or  other  matters  be- 
longing to  the  company  in  the  possession  or  custody  of 
any  such  collector  or  officer  at  the  occurrence  of  any 
such  event  as  aforesaid,  then,  upon  application  being 
made  by  the  company  to  any  justice,  it  shall  be  lawful 
for  such  justice  to  order  any  constable,  with  proper  assist- 
ance, to  enter  upon  such  station  or  otlier  building,  and 
to  remove  any  person  found  therein,  and  to  take  posses- 
sion thereof,  and  of  any  such  books,  j)apers,  or  other  mat- 
ters, and  to  deliver  the  same  to  the  company,  or  any 
person  appointed  by  them  for  tliat  purj)ose. 

107.  And  be  it  enacted,  tliut  the  company  shall  every  ;'^,';";;'''„''h; 
year  cause  an  annual  account  in  abstract  to  l)e  ]>rc|iiire(l,  ,„„,ie  „p^  „„,\ 
showing  the  total  receipts  and  expenditure  of  all  funds  ••_ J^'^'i'^ ,'^»','^'J 

ilcik  ofllie 

(a)  See  note  (2)  in  preceding  page.  peace,  &c. 


cc 


Bye  Laws. 


Company  to 
regulate  the 
use  of  the 
railway. 


Appendix — Statutes. 

levied  by  virtue  of  this  or  the  special  act  for  the  year 
ending  on  the  thirty-first  day  of  December  or  some  other 
convenient  day  in  each  year,  under  the  several  distinct 
heads  of  receipt  and  expenditure,  with  a  statement  of  the 
balance  of  such  account,  duly  audited  and  certified  by 
the  directors,  or  some  of  them,  and  by  the  auditors,  and 
shall,  if  required,  transmit  a  copy  of  the  said  account, 
free  of  charge,  to  the  overseers  of  the  poor  of  the  several 
parishes  through  which  the  railway  shall  pass,  and  also  to 
the  clerks  of  the  peace  of  the  counties  through  which  the 
railway  shall  pass,  on  or  before  the  thirty-first  day  of 
January  then  next ;  which  last-mentioned  account  shall 
be  open  to  the  inspection  of  the  public  at  all  seasonable 
hours,  on  payment  of  the  sum  of  one  shilling  for  every 
such  inspection  :  provided  always,  that  if  the  said  com- 
pany shall  omit  to  prepare  or  transmit  such  account  as 
aforesaid,  if  required  so  to  do  by  any  such  clerk  of  the 
peace  or  overseers  of  the  poor,  they  shall  forfeit  for  every 
such  omission  the  sum  of  twenty  pounds. 

And  with  respect  to  the  regulating  of  the  use  of  the 
railway,  be  it  enacted  as  follows : 

108.  It  shall  be  lawful  for  the  company,  from  time  to 
time,  subject  to  the  provisions  and  restrictions  in  this  and 
the  special  act  contained,  to  make  regulations  for  the  fol- 
lowing purposes  ;  (that  is  to  say,) 

For  regulating  the  mode  by  which  and  the  speed  at 
which  carriages  using  the  railway  are  to  be  moved 
or  propelled ; 
For  regulating  the  times  of  the  arrival  and  departure  of 

any  such  carriages ; 
For  regulating  the  loading  or  unloading  of  such  car- 
riages, and  the  weights  which  they  are  respectively 
to  carry ; 
For  regulating  the  receipt  and  delivery  of  goods  and 
other  things  which  are  to  be  conveyed  upon  such 
carriages  ; 
For  preventing  the  smoking  of  tobacco,  and  the  com- 
mission of  any  other  nuisance,  in  or  upon  such  car- 
riages, or  in  any  of  the  stations  or  premises  occupied 
by  the  company ; 
And,  generally,  for  regulating  the  travelling  upon,  or 
using  and  working  of  the  railway  : 
But  no  such  regulation  shall  authorize  the  closing  of  the 
railway,  or  prevent  the  passage  of  engines  or  carriages  on 
the  railway,  at  reasonable  times,  except  at  any  time  when 


I 


8  Vict.  c.  20 — Railways  Clauses.  cc 

in  consequence  of  any  of  the  works  being  out  of  repair, 
or  from  any  other  sufficient  cause,  it  shall  be  necessary 
to  close  the  railway  or  any  part  thereof. 

109.  For  better  enforcing  the  observance  of  all  or  any  Power  to 
of  such  regulations  it  shall  be  lawful  for  the  company,  make  regnia- 
subject  to  the  provisions  of  an  act  passed  in  the  fourth  jaw'.  ^^  ^^^ 
year  of  the  reign  of  her  present  majesty,  intituled  "An  3  &  4  vict. 
Act  for  regulating  Railways,"  to  make  bye  laws,  («)  and  c.  97. 
from  time  to  time  to  repeal  or  alter  such  bye  laws,  and 

make  others,  provided  that  such  bye  laws  be  not  repug- 
nant to  the  laws  of  that  part  of  the  United  Kingdom 
where  the  same  are  to  have  eifect,  or  to  the  provisions  of 
this  or  the  special  act ;  and  such  bye  laws  shall  be  re- 
duced into  writing,  and  shall  have  affixed  thereto  the 
common  seal  of  the  company  ;  and  any  person  offending 
against  any  such  bye  law  shall  forfeit  for  every  such  of- 
fence any  sum  not  exceeding  five  pounds,  to  be  imposed 
by  the  company  in  such  bye  laws  as  a  penalty  for  any 
such  offence  ;  and  if  the  infraction  or  non-observance  of 
any  such  bye  law  or  other  such  regulation  as  aforesaid 
be  attended  with  danger  or  annoyance  to  the  public,  or 
hindrance  to  the  company  in  the  lawful  use  of  the  rail- 
way, it  shall  be  lawful  for  the  company  summarily  to  in- 
terfere to  obviate  or  remove  such  dauger,  annoyance,  or 
hindrance,  and  that  without  prejudice  to  any  penalty  in- 
curred by  the  infraction  of  any  such  bye  law. 

110.  The  substance  of  such  last-mentioned  bye  laws,  Publication 
when  confirmed  or  allowed  according  to  the  provisions  °l^"^^  *'^* 
of  any  act  in  force  regulating  the  allowance  or  confirma- 
tion of  the  same,  shall  be  painted  on  boards,  or  printed 

on  paper  and  pasted  on  boards,  and  hung  up  and  affixed 
and  continued  on  the  front  or  other  conspicuous  part  of 
every  wharf  or  station  belonging  to  the  company,  accord- 
ing to  the  nature  or  subject  matter  of  such  bye  laws  re- 
spectively, and  so  as  to  give  public  notice  thereof  to  the 
parties  interested  therein  or  affected  thereby  ;  and  such 
boards  shall  from  time  to  time  be  renewed  as  often  as  the 
bye  laws  thereon  or  any  part  thereof  shall  bo  obliterated 
or  destroyed  ;  and  no  penalty  imposed  by  any  such  bye 
law  shall  be  recoverable  unless  the  same  shall  have  been 
published  and  kept  published  in  manner  aforesaid. 

111.  Such  bye  laws,  when  so  confirmed,  published,  S'>chbye^ 

blixliiiK  on 
all  parllci. 

(a)  See  Treatise,  p.  247—249. 

1 1  5 


Leasing  of 
Railway, 

Exercise  of 
power  to 
lease  the 
railway. 


Powers 
vesled  in 
the  company 
may  be  exer- 
cised by  the 
lesiees. 


Appendix — Statutes. 

and  affixed,  shall  be  binding  upon  and  be  observed  by 
all  parties,  and  shall  be  sufficient  to  justify  all  persons 
acting  under  the  same  ;  and  for  proof  of  the  publication 
of  any  such  bye  laws  it  shall  be  sufficient  to  prove  that  a 
printed  paper  or  painted  board,  containing  a  copy  of  such 
bye  laws,  was  affixed  and  continued  in  manner  by  this 
act  directed,  and  in  case  of  its  being  afterwards  displaced 
or  damaged,  then  that  such  paper  or  board  was  replaced 
as  soon  as  conveniently  might  be. 

And  with  respect  to  leasing  (6)  the  railway,  be  it 
enacted  as  follows : 

112.  Where  the  company  shall  be  authorized  by  the 
special  act  to  lease  the  raihvay  or  any  part  thereof  to  any 
company  or  person,  the  lease  to  be  executed  in  pursuance 
of  such  authority  shall  contain  all  usual  and  proper 
covenants  on  the  part  of  the  lessee  for  maintaining  the 
railway,  or  the  portion  thereof  comprised  in  such  lease, 
in  good  and  efficient  repair  and  working  condition  dur- 
ing the  continuance  thereof,  and  for  so  leaving  the  same 
at  the  expiration  of  the  term  thereby  granted,  and  such 
other  provisions,  conditions,  covenants,  and  agreements, 
as  are  usually  inserted  in  leases  of  a  like  nature,  (c) 

1 13.  Such  lease  shall  entitle  the  company  or  person  to 
whom  the  same  shall  be  granted  to  the  free  use  of  the 
railway  or  portion  of  railway  comprised  therein,  and 
during  the  continuance  of  any  such  lease  all  the  powers 
and  privileges  granted  to  and  which  might  otherwise  be 
exercised  and  enjoyed  by  the  company,  or  the  directors 
thereof,  or  their  officers,  agents,  or  servants,  by  virtue  of 
this  or  the  special  act,  with  regard  to  the  possession, 
enjoyment,  and  management  of  the  railway,  or  of  the 
part  thereof  comprised  in  such  lease,  and  the  tolls  to  be 
taken  thereon,  shall  be  exercised  and  enjoyed  by  the 
lessee,  and  the  officers  and  servants  of  such  lessee,  under 
the  same  regulations  and  restrictions  as  are  by  this  or  the 
special  act  imposed  on  the  company,  and  their  directors, 
officers,  and  servants  ;  and  such  lessee  shall,  with  respect 
to  the  railway  comprised  in  such  lease,  be  subject  to  all 
the  obligations  by  this  or  the  special  act  imposed  on  the 
company. 

(6)  See  8  &  9  Vict.  c.  96,  post. 

(c)  Semble,  express  provision  is  necessary  to  give  this  power 
to  company.    See  Treatise,  pp.  126,  127 


8  Vict.  c.  20 — Railways  Clauses.  cciii 

And  with  respect  to  the  engines  and  carriages  to  be    Carriages 
brought  on  the  railway,  be  it  enacted  as  follows  :  and 

114.  Every  locomotive  steam  engine  to  be  used  on  the     JEMgiH«. 
railway  shall,  if  it  use  coal  or  other  similar  fuel  emitting  Engiiies  lo 
smoke,  be  constructed  on  the  principle  of  cousumino-  and  "=""'•""«  ">«'"" 
so  as  to  consume  its  own  smoke  ;  and  if  any  eno-ine  be  ^"'"^^' 
not  so  constructed  the  company  or  party   usino-  such 
engine  shall  forfeit  live   pounds  for  every  day  durino- 
which  such  engine  shall  be  used  on  the  railway. 
_  115.   No  loconjotive  or  other  engine,  or  other  descrip-  Engines  to  be 
tion  of  moving  power,  shall  at  any  time  be  brought  upon  appf"**''  by 
or  used  on  the  railway  unless  the  same  have  first  been  ap-  a,'d«"iSe 
proved  of  by  the  company  ;  and  within  fourteen  days  "f  approval 
after  notice  given  to  the  company  by  any  party  desirous  °'^^"" 
of  bringing  any  such  engine  on  the  railway  the  company 
shall  cause  their  engineer  or  other  agent  to  examine  such 
engine  at  any  place  within  three  miles  distance  from  the 
railway  to  be  appointed  by  the  owner  thereof,  and  to 
report  thereon  to  the  company  ;  and  within  seven  days 
after  such  report,  if  such  engine  be  proper  to  be  used  on 
the  railway,  the  company  shall  give  a  certificate  to  the 
party   requiring  the   same  of  their   approval   of  sucii 
engine ;  and  if  at  any  time  the  engineer  or  other  agent  Unfit  engines 
of  the  company  report  that  any  engine  used  upon  the  [nov'ea*^' 
railway  is  out  of  repair,  or  unfit  to  be  used  upon  the  rail- 
way, the  company  may  require  the  same  to  be  taken  ott',  or 
may  forbid  its  use  upon  the  railway  until  the  same  sliall 
have  been  repaired  to  the  satisfaction  of  the  company, 
and  upon  the  engine  being  so  repaired  the  company  shall 
give  a  certificate  to  tlie  party  requiring  the  same  of  tiieir 
approval  of  such   engine  ;    and   if  any   difference    of 
opinion  arise   between  the  company  and  tlie  owner  of 
any  such  engine  as  to  the  fitness  or  unfitness  thereof  for 
the  purpose  of  being  used  on  the  railway,  such  difference 
shall  be  settled  by  arbitration. 

116.  If  any  person,  whether  the  owner  or  other  per-  Penalty  for 
son  having  the  care  thereof,  bring  or  use  upon  the  rail-  p"'r"^[„''"Pp"*.' 
way  any  locomotive  or  other  engine,  or  any  moving 
power,  without  having  first  obtained  sucli  certificate  of 
approval  as  aforesaid,  or  if,  after  notice  given  bv  the 
company  to  remove  any  such  engine  from  tlie  railway, 
such  person  do  not  forthwith  remove  tiie  same,  or  if, 
after  notice  given  by  the  company  not  to  use  any  such 
engine  on  the  railway,  sucli  person  do  souse  sucli  engine, 
without  having  first  repaired  the  same  to  the  satisfiictioii 
of  the  company,  and  obtained  such  certificate  of  up- 


Carriages  to 
be  con- 
strnctert  ac- 
cording to 
company's 
regulations. 


Regnlations 
10  apply  also 
to  company's 
carriages. 


Penalty  for 
using  impro- 
per carriages 


Owner's 
name,  &c.  to 
be  registered 
and  exhibited 
on  carriages. 


Appendix — Statutes. 

proval,  every  such  person  shall  in  any  of  the  cases  afore- 
said forfeit  to  the  company  a  sum  not  exceeding  twenty 
pounds ;  and  in  any  such  case  it  shall  be  lawful  for  the 
company  to  remove  such  engine  from  the  railway. 

117.  No  carriage  shall  pass  along  or  be  upon  the  rail- 
way (except  in  directly  crossing  the  same,  as  herein  or 
by  the  special  act  authorized, )  unless  such  carriage  be  at 
all  times,  so  long  as  it  shall  be  used  or  shall  remain  on 
the  railway,  of  the  construction  and  in  the  condition 
Avhich  the  regulations  of  the  company  for  the  time  being 
shall  require  ;  and  if  any  dispute  arise  between  the  com- 
pany and  the  owner  of  any  such  carriage  as  to  the  con- 
struction or  condition  thereof,  in  reference  to  the  then 
existing  regulations  of  the  company,  such  dispute  shall 
be  settled  by  arbitration. 

118.  The  regulations  from  time  to  time  to  be  made  by 
the  company  respecting  the  carriages  to  be  used  on  the 
railway  shall  be  drawn  up  in  writing,  and  be  authenti- 
cated by  the  common  seal  of  the  company,  and  shall  be 
applicable  alike  to  the  carriages  of  the  company  and  to 
the  carriages  of  other  companies  or  persons  using  the 
railway ;  and  a  copy  of  such  regulations  shall,  on  de- 
mand, be  furnished  by  the  secretary  of  the  company  to 
any  person  applying  for  the  same. 

119.  If  any  carriage,  not  being  of  such  construction  or 
in  such  condition  as  the  regulations  of  the  company  for 
the  time  being  require,  be  made  to  pass  or  be  upon  any 
part  of  the  railway  (except  as  aforesaid),  the  owner 
thereof,  or  any  person  having  for  the  time  being  the 
charge  of  such  carriage,  shall  forfeit  to  the  companj^  a 
sum  not  exceeding  ten  pounds  for  every  such  oftence, 
and  it  shall  be  lawful  for  the  company  to  remove  any 
such  carriage  from  the  railway. 

120.  The  respective  owners  of  carriages  using  the  rail- 
way shall  cause  to  be  entered  with  the  secretary  or  other 
officer  of  the  company  appointed  for  that  purpose  the 
names  and  places  of  abode  of  the  owners  of  such  car- 
riages respectively,  and  the  numbers,  weights,  and 
gauges  of  their  respective  carnages ;  and  such  owners 
shall  also,  if  so  required  by  the  company,  cause  the 
same  particulars  to  be  painted  in  legible  characters  on 
some  conspicuous  part  of  the  outside  of  every  such  car- 
riage, so  as  to  be  always  open  to  view ;  and  every  such 
owner  shall,  whenever  required  by  the  company,  permit 
his  carriage  to  be  weighed,  measured,  or  gauged  at  the 
expense  of  the  company. 


8  Vict.  c.  20— Railways  Clauses.  ccv 

121.  If  the  owner  of  any  carriage  fail  to  comply  with  O"  ""n- 
the  requisitions  contained  in  the  preceding  enactment,  it  ^°J".i''''i"'=« 
shall  be  lawful  for  the  company  to  refuse  to  allow  such  be  removed, 
carriage  to  be  brought  upon  the  railway,  or  to  remove 

the  same  therefrom  until  such  compliance. 

122.  If  the  loading  of  any  carriage  using  the  railway  Carriages 
be  such  as  to  be  liable  to  collision  with  other  carriages  ""properly 
properly  loaded,  or  to  be  otherwise  dangerous,  or  if  the  l?,ffe*ed  in 
person  having  the  care  of  any  carriage  or  goods  upon  obstruct  the 
the  railway  suffer  the  same  or  any  part  thereof  to  remain  r"***'  .'"'J 
on  the  railway  so  as  to  obstruct  the  passage  or  working  or  removed, 
thereof,  it  shall  be  lawful  for  the  company  to  cause  such 
carriage  or  goods  to  be  unloaded  and  removed  in  any 
manner  proper  for  preventing  such  collision  or  obstruc- 
tion, and  to  detain  such  carriage  or  goods,  or  any  part 
thereof,  until  the  expenses  occasioned  by  such  unloading, 
removal,  or  detention  be  paid. 

123.  The  company  shall  not  be  liable  for  any  damage  ^"J^.^.'!"^,""" 
or  loss  occasioned  by  any  such  unloading,  removal,  or  de-  for  tiamaue 
tention  as  aforesaid,  except  for  damage  wilfully  or  neg-  by  such  un- 
ligently  done  to  any  carriage  or  goods  so  unloaded,  re-  '"'  '"^'  *'^" 
moved,  or  detained  ;  nor  shall  they  be  liable  for  the  safe 
custody  of  any  such  carriage  or  goods  so  detained  unless 

the  same  be  wrongfully  detained  by  them,  and  then  only 
for  so  long  a  time  as  the  same  shall  have  been  so  wrong- 
fully detained. 

124.  The  respective  owners  of  engines  and  carriages  Owners  liable 
passing  or  being  upon  the  railway  shall  be  answerable  for  by  ilfeTr'fer- 
any  trespass  or  damage  done  by  their  engines  or  carriages,  vant». 

or  by  any  of  the  servants  or  persons  employed  by  tliem, 
to  or  upon  the  railway,  or  the  machinery  or  works  be- 
longing thereto,  or  to  or  upon  the  property  of  any  otiier 
person  ;  and  every  such  servant  or  other  person  may 
lawfully  be  convicted  of  such  trespass  or  damage  before 
any  two  justices  of  the  peace,  either  by  the  confession 
of  the  party  offending,  or  upon  the  oath  of  some  credi- 
ble witness  ;  and  upon  such  conviction  every  such  owner 
shall  pay  to  the  company  or  to  the  person  injured,  as  the 
case  may  be,  the  damage  to  be  ascertained  by  such  jus- 
tices, so  that  the  same  do  not  exceed  fifty  pounds. 

125.  It  shall  be  lawful  for  any  owner  of  an  engine  or  ";;";;;  ^^^^^ 
carriage,   who  shall   pay  the  amount  of   any   damage  ,,,,,„„. 
caused  by  the  misfeasance  or  negligence  of  any  servant 

or  other  person  employed  by  him,  to  recover  tlie  ainotint 
so  paid  by  him  from  such  servant  or  ether  person  by  the 
same  means  as  the  company  are  enabled  to  recover  tlic 


ccvi  Appendix — Statutes. 

amount  of  such  damage  from  the  owner  of  any  engine  or 
carriage. 

Arbitration.  And  with  respect  to  the  settlement  of  disputes  by  arbi- 
tration, be  it  enacted  as  follows  : 
Appointment  126.  When  any  dispute  authorized  or  directed  by  this 
of  arbitrators  qj.  |;ijg  special  act,  or  any  act  incorporated  therewith,  to 
lions" a1e"o  be  Settled  by  arbitration,  shall  have  arisen,  then,  unless 
be  rieiermin-  both  parties  shall  concur  in  the  appointment  of  a  single 
tk)n^  ^'^''"'^"  arbitrator,  each  party,  on  the  request  of  the  other  party, 
shall  nominate  and  appoint  an  arbitrator  to  whom  such 
dispute  shall  be  referred ;  and  everj'  appointment  of  an 
arbitrator  shall  be  made  on  the  part  of  the  company, 
under  the  hand  of  the  secretary  or  any  two  of  the  di- 
rectors of  the  company,  and  on  the  part  of  any  other 
party  under  the  hand  of  such  party,  or  if  such  party  be 
a  corporation  aggregate,  under  the  common  seal  of  such 
corporation,  and  such  appointment  shall  be  delivered  to 
the  arbitrators,  and  shall  be  deemed  a  submission  to  ar- 
bitration on  the  part  of  the  party  by  whom  the  same 
shall  be  made  ;  and  after  any  such  appointment  shall 
have  been  made,  neither  party  shall  have  power  to  revoke 
the  same  witliout  the  consent  of  the  other,  nor  shall  the 
death  of  either  party  operate  as  a  revocation  ;  and  if  for 
the  space  of  fourteen  days  after  any  such  dispute  shall  have 
arisen,  and  after  a  request  in  writing,  in  which  shall  be 
stated  the  matters  so  required  to  be  referred  to  arbitra- 
tion, shall  have  been  served  by  the  one  party  on  the 
other  party  to  appoint  an  arbitrator,  such  last-mentioned 
party  fail  to  appoint  such  arbitrator,  then  upon  such 
failure  the  party  making  the  request,  and  having  himself 
appointed  an  arbitrator,  may  appoint  such  arbitrator  to 
act  on  behalf  of  both  parties ;  and  such  arbitrator  may 
proceed  to  hear  and  determine  the  matters  which  shall  be 
in  dispute ;  and  in  such  case  the  award  or  determination 
of  such  single  arbitrator  shall  be  final. 

127.  If  before  the  matters  so  referred  shall  be  deter- 
mined any  arbitrator  appointed  by  either  party  die,  or 
become  incapable  to  act,  the  party  by  whom  such  arbi- 
trator was  appointed  may  nominate  and  appoint  in  writ- 
ing some  other  person  to  act  in  his  place,  and  if  for  the 
space  of  seven  days  after  notice  in  writing  from  the  other 
party  for  that  purpose  he  fail  to  do  so,  the  remaining  or 
other  arbitrator  may  proceed  ex  parte  ;  and  every  arbi- 
trator so  to  be  substituted  as  aforesaid  shall  have  the 
ame  powers  and  authorities  as  were  vested  in  the  Ibrmer 


8  Vict.c.  20.— Railways  Clauses.  ccvii 

arbitrator  at  the  time  of  such  his  death  or  incapacity  as 
aforesaid. 

128.  Where  more  than  one  arbitrator  shall  have  been  Appointment 
appointed,  such  arbitrators  shall,  before  they  enter  upon  "''  "'"P'"«- 
the  matters  referred  to  them,  nominate  and  appoint  by 
writing  under  their  hands  an  umpire  to  decide  on  any 

such  matters  on  which  they  shall  differ,  or  which  shall 
be  referred  to  him  under  this  or  the  special  act ;  and  if 
such  umpire  shall  die,  or  become  incapable  to  act,  tliey 
shall  forthwith  after  such  death  or  incapacity  appoint 
another  umpire  in  his  place  ;  and  the  decision  of  every 
such  umpire  on  the  matter  so  referred  to  him  shall  be 
final. 

129.  If  in  either  of  the  cases  aforesaid  the  said  arbi-  Board  of 
trators  shall  refuse,  or  shall  for  seven  days  after  request  ^onered" o 
of  either  party  to  such  arbitration  neglect  to  appoint  an  appohuai? 
umpire,  the  Board  of  Trade  shall,  on  the  application  of  "'"''''"«■  °" 
either  party  to  such  arbitration,   appoint   an  umpire  ;  ".^blrn.'wrs!'''' 
and  the  decision  of  such  umpire  on  the  matters  on  which 

the  arbitrators  shall  differ,  or  which  shall  be  referred  to 
him  under  this  or  the  special  act,  shall  be  final. 

130.  If  where  a  single  arbitrator  shall  have  beeu  ap-  in  case  of 
pointed,  such  arbitrator  shall  die,  or  become  incapable  ''.'^^'''  "•' 
to  act,  before  he  shall  have  made  his  award,  the  matters  ,"raulr,  "the'' 
referred  to  him  shall  be  determined  by  arbitration,  under  maiier  to 
the  provisions  of  this  or  the  special  act,  in  the  same  man-  ^^^'"  ''*' 
ner  as  if  such  arbitrator  had  not  been  appointed. 

131.  If,  where  more  than  one  arbitrator  shall  have  If  eiilierarbi- 
been  appointed,  either  of  the  arbitrators  refuse,  or  for  "■"""■  '••"'*' 
seven  days  neglect  to  act,  the  other  arbitrator  may  pro-  o"her'u> 'pro- 
ceed ex  parte,  and  the  decision  of  such  other  arbitrator  ceetiexpane. 
shall  be  as  effectual  as  if  he  had  been  the  single  arbitrator 
appointed  by  both  parties. 

132.  If,  where  more  than  one  arbitrator  shall  have  u  arbitrator* 
been  appointed,  and  where  neither  of  tiiem  shall  refuse  fail  lo  make 
or  neglect  to  act  as  aforesaid,  sucli  arbitrators  shall  fail  Ji'ihi,','"""" 
to  make  their  award  within  twenty-one  days  after  tiie  iw.iity-onc 
day  on  which  the  last  of  such  arbitrators  shall  have  been  fn'.;\i;.r','f,  ^„ 
appointed,  or  within  such  extended  time,  if  any,  as  shail  i.,  iheutn- 
have  been  appointed  for  that  purpose  by  both  sucli  arbi-  (<'"■•• 
trators  under  their  hands,  the  matter  referred  to  tliein 

shall  be  determined  by  the  um])ire  to  be  appointed  as 
aforesaid. 

133.  The  said  arbitrators  or  their  umpire  may  call  for  Pow.r  for 
the  production  of  any  documents  in  the  possession  or  "^{"I'J^J  b^J"^ 
power  of  either  party  which  they  or  he  may  think  ne-  &c. 


Arbitrator 
and  umpire 
to  make  de- 
claration. 


Costs  to  be 
in  the  discre- 
tion of  the 
arbitrators. 


Submission  to 
arbitration 
may  be  made 
a  rule  of 
court. 

The  award 
not  to  be  set 
aside  for 
matter  of 
form. 

Service  of 
notices  upon 
company. 


Tender  of 
amends. 


Appendix — Statutes. 

cessary  for  determining  the  question  in  dispute,  and  may 
examine  the  parties  or  their  witnesses  on  oath,  and  ad- 
minister the  oaths  necessary  for  that  purpose. 

134.  Before  any  arbitrator  or  umpire  shall  enter  into 
the  consideration  of  any  matters  referred  to  him,  he  shall, 
in  the  presence  of  a  justice,  make  and  subscribe  the  fol- 
lowing declaration  ;  that  is  to  say, 

'  I,  A.  B.  do  solemnlj^  and  sincerely  declare,  that  I 

'  will  faithfully  and  honestly,  and  to  the  best  of  my 

'  skill  and  ability,  hear  and  determine  the  matters  re- 

'  ferred  to  me,  under  the  provisions  of  the  act  [naming 

'  the  special  act. ^  A.  B. 

'  Made  and  subscribed  in  the  presence  of  .' 

And  such  declaration  shall  be  annexed  to  the  award 

when  made ;  and  if  any  arbitrator  or  umpire,  having 

made  such  declaration,  shall  wilfully  act  contrary  thereto, 

he  shall  be  guilty  of  a  misdemeanor. 

135.  Except  where  by  this  or  the  special  act,  or  any 
act  incorporated  therewith,  it  shall  be  otherwise  pro- 
vided, the  costs  of  and  attending  every  such  arbitration, 
to  be  determined  by  the  arbitrators,  shall  be  in  the  dis- 
cretion of  the  arbitrators. 

136.  The  submission  to  any  such  arbitration  may  be 
made  a  rule  of  any  of  the  superior  courts,  on  the  applica- 
tion of  either  of  the  parties. 

137.  No  award  made  with  respect  to  anj'  question  re- 
ferred to  arbitration  under  the  provisions  of  this  or  the 
special  act  shall  be  set  aside  for  irregulai-ity  or  error  in 
matter  of  form. 

138.  And  be  it  enacted,  that  any  summons  or  notice, 
or  any  writ,  or  other  proceeding  at  law  or  in  equitj^,  re- 
quiring to  be  served  upon  the  company,  may  be  served 
by  the  same  being  left  at  or  transmitted  through  the  post 
directed  to  the  principal  office  of  the  company,  or  one  of 
their  principal  offices  where  there  shall  be  more  than 
one,  or  being  given  personally  to  the  secretary,  or  in 
case  there  be  no  secretary  then  by  being  given  to  any 
one  director  of  the  company,  (d) 

139.  And  be  it  enacted,  that  if  any  party  shall  have 
committed  any  irregularity,  trespass,  or  other  wrongful 
proceeding  in  the  execution  (e)  of  this  or  the  special  act, 
or  any  act  incorporated  therewith,  or  by  virtue  of  any 
power  or  authority  thereby  given,  and  if  before  action 


(d)  See  Treatise,  ante,  pp.  383,384. 

(e)  See  Treatise,  p.  380. 


8  Vict.  c.  20. — Railnays  Clauses.  ccix 

brought  in  respect  thereof  such  party  make  tender  of 
sufficient  amends  to  the  party  injured,  such  last-men- 
tioned party  shall  not  recover  in  any  such  action  ;  and 
if  no  such  tender  shall  have  been  made  it  shall  be  lawful 
for  the  defendant,  by  leave  of  the  court  where  such  action 
shall  be  pending,  at  any  time  before  issue  joined  to  pay 
into  court  such  sum  of  money  as  he  shall  think  fit,  and 
thereupon  such  proceedings  shall  be  had  as  in  other  cases 
where  defendants  are  allowed  to  pay  money  into  court. 

And  with  respect  to  the  recovery  of  damages  not  spe-  Recovery  of 
cially  provided  for,  and  of  penalties,  and  to  the  determi-     Damages 
nation  of  any  other  matter  referred  to  justices,  be  it       ""^ 
enacted  as  follows  :  Penalties. 

140.  In  all  cases  where  any  damages,  costs,  or  ex-  Provision  for 
penses  are  by  this  or  the  special  act,  or  any  act  incorpo-  f,fi^rwUe""' 
rated  therewith,  directed  to  be  paid,  and  the  method  of  provided  for. 
ascertaining  the  amount  or  enforcing  the  payment  thereof 

is  not  provided  for,  such  amount,  in  case  of  dispute,  shall 
be  ascei'tained  and  determined  by  two  justices  ;  and  if 
the  amount  so  ascertained  be  not  paid  by  the  company 
or  other  party  liable  to  pay  the  same  within  seven  days 
after  demand,  the  amount  may  be  recovered  by  distress 
of  the  goods  of  the  company  or  other  party  liable  as 
aforesaid  ;  and  the  justices  by  whom  the  same  shall  have 
been  ordered  to  be  paid,  or  either  of  them,  or  any  other 
justice,  on  application,  shall  issue  their  or  his  warrant 
accordingly. 

141.  If  sufficient  goods  of  the  company  cannot  be  Disiress 
found  whereon  to  levy  any  such  damages,  costs,  and  ex-  ,"ria"urer.' 
penses  payable  by  the  company,  the  same  may,  if  the 
amount  thereof  do  not  exceed  twenty  pounds,  be  re- 
covered by  distress  of  the  goods  of  the  treasurer  of  the 
company  ;  and  the  justices  aforesaid,  or  eitlier  of  them, 

on  application,  shall  issue  their  or  his  warrant  accord- 
ingly ;  but  no  such  distress  shall  issue  against  tlic  goods 
of  such  treasurer  unless  seven  days  previous  notice  in 
writing,  stating  the  amount  so  due,  and  demanding  pay- 
ment thereof,  have  been  given  to  such  treasurer  or  left 
at  his  residence  ;  and  if  such  treasurer  pay  any  money 
under  such  distress  as  aforesaid  lie  may  retain  the  amount 
so  paid  by  him,  and  all  cost  and  expenses  occasioned 
thereby,  out  of  any  money  belonging  to  the  company, 
coming  into  his  custody  or  control,  or  he  may  sue  tlie 
company  for  the  same. 

142.  Where  in  this  or  the  special  act  any  rpiestion  ot  m.iIi.mI  or 


Penalties  to 
be  summarily 
recoveted 
before  two 
justices. 


Appendix — Statutes, 

compensation,  expenses,  charges,  or  damages,  or  other 
matter  is  referred  to  the  determination  of  any  one  justice 
or  more,  it  shall  be  lawful  for  any  justice,  upon  the  ap- 
plication of  either  party,  to  summon  the  other  party  to 
appear  before  one  justice,  or  before  two  justices,  as  the 
case  may  require,  at  a  time  and  place  to  be  named  in 
such  summons ;  and  upon  the  appearance  of  such  par- 
ties, or  in  the  absence  of  any  of  them,  upon  proof  of  due 
service  of  the  summons,  it  shall  be  lawful  for  such  one 
justice,  or  such  two  justices,  as  the  case  may  be,  to  hear 
and  determine  such  question,  and  for  that  purpose  to 
examine  such  parties  or  any  of  them,  and  their  witnesses, 
on  oath  ;  and  the  costs  of  every  such  inquiry  shall  be  in 
the  discretion  of  such  justices,  and  they  shall  determine 
the  amount  thereof. 

143.  The  company  shall  publish  the  short  particulars 
of  the  several  offences  for  which  any  penalty  is  imposed 
by  this  or  the  special  act,  or  by  any  bye  law  of  the  com- 
pany affecting  other  persons  than  the  shareholders,  offi- 
cers, or  servants  of  the  company,  and  of  the  amount  of 
every  such  penalty,  and  shall  cause  such  particulars  to 
be  painted  on  a  board,  or  printed  upon  paper  and  pasted 
thereon,  and  shall  cause  such  board  to  be  hung  up  or 
affixed  on  some  conspicuous  part  of  the  principal  place  of 
business  of  the  company,  and  where  any  such  penalties 
are  of  local  application  shall  cause  such  boards  to  be 
affixed  in  some  conspicuous  place  in  the  immediate  neigh- 
bourhood to  which  such  penalties  are  applicable  or  have 
reference ;  and  such  particulars  shall  be  renewed  as  often 
as  the  same  or  any  part  thereof  is  obliterated  or  destroyed  ; 
and  no  such  penalty  shall  be  recoverable  unless  it  shall 
have  been  published  and  kept  published  in  the  manner 
hereinbefore  required. 

144.  If  any  person  pull  down  or  injure  any  board  put 
up  or  affixed  as  required  by  this  or  the  special  act  for  the 
purpose  of  publishing  any  bye  law  or  penalty,  or  shall 
obliterate  any  of  the  letters  or  figures  thereon,  he  shall 
forfeit  for  every  such  offence  a  sum  not  exceeding  five 
pounds,  and  shall  defray  the  expenses  attending  the 
restoration  of  such  board. 

145.  Every  penalty  or  forfeiture  imposed  by  this  or 
the  special  act,  or  by  any  bye  law  made  in  pursuance 
thereof,  the  recovery  of  which  is  not  othersv  ise  provided 
for,  may  be  recovered  by  summary  proceeding  before 
two  justices  ;  and  on  complaint  being  made  to  any  justice 
he  shaU  issue  a  summons  requiring  the  party  complained 


8  Vict.  c.  20— Railways  Clauses.  ccxi 

against  to  appear  before  two  justices  at  a  time  and  place 
to  be  named  in  such  summons,  and  every  such  summons 
shall  be  served  on  the  party  offending  either  in  person  or 
by  leaving  the  same  with  some  inmate  at  his  usual  place 
of  abode ;  and  upon  the  appearance  of  the  party  com- 
plained against,  or  in  his  absence,  after  proof  of  the  due 
service  of  such  summons,  it  shall  be  lawful  for  any  two 
justices  to  proceed  to  the  hearing  of  the  complaint,  and 
that  although  no  information  in  writing  or  in  print  shall 
have  been  exhibited  before  them  :  and  upon  proof  of  the 
offence,  either  by  the  confession  of  the  party  complained 
against,  or  upon  the  oath  of  one  credible  witness  or 
more,  it  shall  be  lawful  for  such  justices  to  convict  the 
offender,  and  upon  such  conviction  to  adjudge  the  of- 
fender to  pay  the  penalty  or  forfeiture  incurred,  as  well 
as  such  costs  attending  the  conviction  as  such  justices 
shall  think  fit. 

146.  If  forthwith  upon  any  such  adjudication  as  afore-  Penalties  to 
said  the  amount  of  the  penalty  or  forfeiture,  and  of  such  ^*  '''^'*-''*  ''> 
costs  as  aforesaid,  be  not  paid,  the  amount  of  such  penalty 

and  costs  shall  be  levied  by  distress,  and  such  justices,  or 
either  of  them,  shall  issue  their  or  his  warrant  of  distress 
accordingly. 

147.  It  shall  be  lawful  for  any  such  iustice  to  order  impnjon- 


tncnt  In 


or 


any  offender  so  convicted  as  aforesaid  to  be  detained  and  ^^eUaU 
kept  in  safe  custody  until  return  can  be  conveniently  distrets. 
made  to  the  warrant  of  distress  to  be  issued  for  levying 
such  penalty  or  forfeiture  and  costs,  unless  the  offender 
give  sufficient  security,  by  way  of  recognizance  or  otlier- 
wise,  to  the  satisfaction  of  the  justice,  for  his  appearance 
before  him  on  the  day  appointed  for  such  return,  such 
day  not  being  more  than  eight  days  from  the  time  of 
taking  such  security  ;  but  if  before  issuing  such  warrant 
of  distress  it  shall  appear  to  the  justice,  by  the  admission 
of  the  offender  or  otherwise,  that  no  sufficient  distress  can 
be  had  within  the  jurisdiction  of  such  justice  whereon  to 
levy  such  penalty  or  forfeiture  and  costs,  he  may,  if  he 
thinks  fit,  refrain  from  issuing  such  warrant  of  distress; 
and  in  such  case,  or  if  such  warrant  shall  have  been 
issued,  and  upon  the  return  thereof  such  insufficiency  as 
aforesaid  shall  be  made  to  appear  to  the  justice,  tlien 
such  justice  shall  by  warrant  cause  such  offender  to  he 
committed  to  gaol,  there  to  remain  witliout  bail  for  any 
term  not  exceeding  three  months,  unless  such  ])enalty  or 
forfeiture  and  costs  be  sooner  paid  and  sf.tisfied. 

148.  Where  in  this  or  the  special  act,  or  any  act  in-  j'^'"J;7jJ;;.'j" 


Appendix  — Statutes. 

corporated  therewith,  any  sum  of  money,  whether  in  the 
nature  of  penalty  or  otherwise,  is  directed  to  be  levied 
by  distress,  such  sum  of  money  shall  be  levied  by  dis- 
tress and  sale  of  the  goods  and  chattels  of  the  party  liable 
to  pay  the  same ;  and  the  overplus  arising  from  the  sale 
of  such  goods  and  chattels,  after  satisfying  such  sum  of 
money,  and  the  expenses  of  the  distress  and  sale,  shall  be 
returned,  on  demand,  to  the  party  whose  goods  shall  have 
been  distrained. 

149.  No  distress  levied  by  virtue  of  this  or  the  special 
.  act,  or  any  act  incorporated  therewith,  shall  be  deemed 
unlawful,  nor  shall  any  party  making  the  same  be 
deemed  a  trespasser,  on  account  of  any  defect  or  want  of 
form  in  the  summons,  conviction,  warrant  of  distress,  or 
other  proceeding  relating  thereto,  nor  shall  such  party 
be  deemed  a  trespasser  ab  initio  on  account  of  any  irre- 
gularity afterwards  committed  by  him,  but  all  persons 
aggrieved  by  such  defect  or  irregularity  may  recover  full 
satisfaction  for  the  special  damage  in  an  action  upon  the 
case.  (/) 

loO.  The  justices  by  whom  any  such  penalty  or  for- 
feiture shall  be  imposed  may,  where  the  application 
thereof  is  not  otherwise  provided  for,  award  not  more 
than  one  half  thereof  to  the  informer,  and  shall  award 
the  remainder  to  the  overseers  of  the  poor  of  the  parsih  in 
which  the  offence  shall  have  been  committed,  to  be  ap- 
plied in  aid  of  the  poor's  rate  of  such  parish,  or  if  the 
place  wherein  the  offence  shall  have  been  committed  shall 
be  extra-parochial,  then  such  justices  shall  direct  such 
remainder  to  be  applied  in  aid  of  the  poor's  rate  of  such 
extra-parochial  place,  or,  if  there  shall  not  be  any  poor's 
rate  therein,  in  aid  of  the  poor's  rate  of  any  adjoining 
parish  or  district. 

151.  No  person  shall  be  liable  to  the  payment  of  any 
penalty  or  forfeiture  imposed  by  virtue  of  this  or  the 
special  act,  or  any  act  incorporated  therewith,  for  any 
offence  made  cognizable  before  a  justice,  unless  the  com- 
plaint respecting  such  offence  shall  have  been  made  before 
such  justice  within  six  months  next  after  the  commission 
of  such  offence. 

152.  If,  through  any  act,  neglect,  or  default  on  ac- 
count whereof  any  person  shall  have  incurred  any  penalty 
imposed  by  this  or  the  special  act,  any  damage  to  the 
property  of  the  company  shall  have  been  committed  by 
such  person,  he  shall  be  liable  to  make  good  such  damage 
as  well  as  to  pay  such  penalty ;  and  the  amount  of  such 


8  Vict.  c.  20 — Railways  Clauses.  ccxiii 

damages  shall,  in  case  of  dispute,  be  determined  by  the 
justices  by  whom  the  party  incurring  such  penalty  shall 
have  been  convicted ;  and  on  nonpayment  of  such  da- 
mages, on  demand,  the  same  shall  be  levied  by  distress 
and  such  justices,  or  one  of  them,  shall  issue  their  or  his 
warrant  accordingly. 

153.  It  shall  be  lawful  for  any  justice  to  summon  any  Penalty  on 
person  to  appear  before  him  as  a  witness  in  any  matter  ^'""^sses 
in  which  such  justice  shall  have  jurisdiction  under  the  "auu!"^  **** 
provisions  of  this  or  the  special  act,  at  a  time  and  place 
mentioned  in  such  summons,  and  to  administer  to  him  an 

oath  to  testify  the  truth  in  such  matter ;  and  if  any  per- 
son so  summoned  shall,  without  reasonable  excuse,  refuse 
or  neglect  to  appear  at  the  time  and  place  appointed  for 
that  purpose,  having  been  paid  or  tendered  a  reasonable 
sum  for  his  expenses,  or  if  any  person  appearing  shall 
refuse  to  be  examined  upon  oath  or  to  give  evidence 
before  such  justice,  every  such  person  shall  forfeit  a  sum 
not  exceeding  five  pounds  for  every  such  offence. 

154.  It  shall  be  lawful  for  any  officer  or  agent  of  the  Transient  of. 
company,  and  all  persons  called  by  him  to  his  assist-  fenders, 
ance,   to   seize  and  detain  any  person  who  shall  have 
committed  any  offence  against  the  provisions  of  this  or 

the  special  act,  and  whose  name  and  residence  shall  be 
unknown  to  such  officer  or  agent,  and  convey  Jiim,  with 
all  convenient  despatch,  before  some  justice,  without  any 
warrant  or  other  authority  than  this  or  the  special  act  ; 
and  such  justice  shall  proceed  with  all  convenient  de- 
spatch to  the  hearing  and  determining  of  the  complaint 
against  such  offender. 

155.  The  justices  before  whom  any  person  shall  be  Form  of  con- 
convicted  of  any  offence  against  this  or  the  special  act,  ^'cn"". 

or  any  act  incorporated  therewith,  may  cause  the  con- 
viction to  be  drawn  up  according  to  tlie  form  in  the 
schedule  to  this  act  annexed. 

156.  No  proceeding  in  pursuance  of  this  or  the  special  |^™^^,*^^"2» 
act,  or  any  act  incorporated  therewitli,  siiall  he.  (juashed  qu,,|"i.rt'^for 
or  vacated  for  want  of  form,  nor  shall  the  same  be  re-  want  of  form, 
moved  by  certiorari  or  otherwise  into  any  of  the  superior  **=• 
courts,  (g) 

157.  If  any  party  shall  feel  aggrieved  by  tlie  determi-  Panie.  al- 
nation  or  adjudication  of  any  justice   \yitli    respect   to  J';^."'|',„'°  "■'■ 
any  penalty  or  forfeiture  under  the  provisions  of  tliis  or  q.Mrivr  •<■»• 
the  special  act,  or  any  act  incorporated  therewith,  such  j;;^";;;*^^*^,^ 

{g)  See  Treatise,  p.  402—404. 


ccxiv  Appendix — Statutes. 

party  may  appeal  to  the  general  quarter  sessions  for  the 
county  or  place  in  which  the  cause  of  appeal  shall  have 
arisen  ;  but  no  such  appeal  shall  be  entertained  unless  it 
be  made  within  four  months  next  after  the  making  of 
such  determination  or  adjudication,  nor  unless  ten  days 
notice  in  writing  of  such  appeal,  stating  the  nature  and 
grounds  thereof,  be  given  to  the  party  against  whom  the 
appeal  shall  be  brought,  nor  unless  the  appellant  forth- 
with after  such  notice  enter  into  recognizance,  with  two 
sufficient  sureties,  before  a  justice,  conditioned  duly  to 
prosecute  such  appeal,  and  to  abide  the  order  of  the  court 
thereon. (h) 
Coiirttomake      158.  At  the  quarter  sessions  for  which  such  notice 
iiley  ihfnk  ^'  ®^^^^^  ^^  given  the  court  shall  proceed  to  hear  and  deter- 
reasonabie.      mine  the  appeal  in  a  summary  way,  or  they  may,  if  they 
think  fit,  adjourn  it  to  the  following  sessions;  and  upon 
the  hearing  of  such  appeal  the  court  may,  if  they  think 
fit,  mitigate  any  penalty  or  forfeiture,  or  they  maj'  con- 
firm or  quash  the  adjudication,  and  order  any  monej"  paid 
by  the  appellant,  or  levied  by  distress  upon  his  goods,  to 
be  returned  to  him,  and  may  also  order  such  further  sa- 
tisfaction to  be  made  to  the  party  injured  as  they  may 
judge  reasonable  ;  and  they  may  make  such  order  con- 
cerning the  costs,  both  of  the  adjudication  and  of  the 
appeal,  as  they  may  think  reasonable. 
Receiver  of        159.   Provided  always,  and  be  it  enacted,  that  not- 
nieiropoiitan   withstanding  anj^  thing  herein  or  in  the  special  act,  or 
to" receive  "'^'  any  act  incorporated  therewith,  contained,  every  penalty 
penalties  in-    or  forfeiture  imposed  by  this  or  the  special  act,  or  any 
his'(r''t^'''''°  ^^*  incorporated  therewith,  or  by  any  bye  law  in  pur- 
suance thereof,  in  respect  of  any  offence  which  shall  take 
place  within  the  metropolitan  police  district,  shall  be  re- 
covered, enforced,  accounted  for,  and,  except  where  the 
application  thereof  is  otherwise  specially  provided  for, 
shall  be  paid  to  the  receiver  of  the  metropolitan  police 
district,   and   shall   be  applied   in  the  same  manner  as 
penalties  or  forfeitures,  other  than  fines  upon  drunken 
persons,  or  upon  constables  for  misconduct,  or  for  assaults 
upon  police  constables,  are  directed  to  be  recovered,  en- 
forced, accounted  for,  paid,  and  applied  by  an  act  passed 
in  the  third  year  of  the  reign  of  her  present  Majesty,  in- 
2  &  3  Vict,     tituled  "  An  Act  for  Regulating  the  Police  Courts  in  the 
•=•  ''•  Metropolis  ;"  and  every  order  or  conviction  of  any  of 

the  police  magistrates  in  respect  of  any  such  forfeiture  or 
penalty  shall  be  subject  to  the  like  appeal,  and  upon  the 
same  terms,  as  is  provided  in  respect  of  any  order  or  con- 


8  Vict.  e.  20 — Railways  Clauses.  ccxv 

viction  of  any  of  the  said  police  magistrates  by  the  said 
last-mentioued  act ;  and  every  magistrate  by  wliom  any 
order  or  conviction  shall  have  been  made  shall  have  the 
same  povi^er  of  binding  over  the  witnesses  who  shall  have 
been  examined,  and  such  witnesses  shall  be  entitled  to 
the  same  allowance  of  expenses  as  he  or  they  would  have 
had  or  been  entitled  to  in  case  the  order,  conviction,  and 
appeal  had  been  made  in  pursuance  of  the  provisions  of 
the  said  last-mentioned  act. 

160.  And  be  it  enacted,  that  every  person  who,  upon  Persons 
any  examination  upon  oath,  under  the  provisions  of  this  ^'*'"?  '^*''* 
or  the  special  act,  or  any  act  incorporated  therewith,  nrbie'uf 
shall  wilfully  and  corruptly  give  false  evidence,  shall  be  penniiies  of 
liable  to  the  penalties  of  wilful  and  corrupt  perjury.  perjury. 

161.  And  be  it  declared  and  enacted,  that  all  sums  of  Money  paid 
money  which  have  been  or  shall  be  paid  into  the  bank  of '"'"  ''"■  ^^"^ 
Ireland  in  the  name  and  with  the  privity  of  the  account-  be  exelnpt'" 
ant  general  of  the  Court  of  Chancery  in  Ireland,  under  •>">"  nshera' 
the  provisions  of  an  act  passed  in  the  second  year  of  the  P°""'''ee- 
reign  of  her  present  majesty,  intituled  "  An  Act  to  pro-  i  &  2  Vice, 
vide  for  the  Custody  of  Certain  Monies  paid  in  pursuance  '"  ^^^' 

of  the  Standing  Order  of  either  House  of  Parliament  by 
Subscribers  to  Works  or  Undertakings  to  be  effected 
under  the  Authority  of  Parliament,"  shall  and  may  be 
paid  out  and  applied  under  any  order  of  the  said  Court 
of  Chancery  exempt  fi'om  ushers'  poundage. 

And  with  respect  to  the  provision  to  be  made  for  af-     Access  to 
fording  access  to  the  special  act  by  all  parties  interested,   special  Act. 
be  it  enacted  as  follows : 

162.  The  company  shall  at  all  times  after  the  expira-  Copies  of^  ^^ 
tion  of  six  months  after  the  passing  of  the  special  act  be"e|„'I,'j,V 
keep  in  their  principal  office  of  business  a  copy  of  the  .lepooiied, 
special  act,  printed  by  the  printers  to  her  majesty,  or  '"'i;'/^'.""'' 
some  of  them ;  shall  also  within  the  space  of  sucli  six  ,|„.cie(i. 
months  deposit  in  the  office  of  each  of  the  clerks  of  tlie 

peace  of  the  several  counties  into  which  tlie  works  shall 
extend  a  copy  of  such  special  act,  so  printed  as  afore- 
said ;  and  the  said  clerks  of  the  peace  shall  receive,  and 
they  and  the  company  respectively  shall  retain,  tiie  said 
copies  of  the  special  act,  and  shall  permit  all  j)ersoiis  in- 
terested to  inspect  the  same,  and  make  extracts  or  cojiics 
therefrom,  in  the  like  manner,  and  upon  the  like  t(;rnis, 
and  under  the  like  penalty  for  default,  as  is  ])rovide(l  m 
the  case  of  certain  plans  and  sections  by  an  act  jiassed  in 
the  first  year  of  the  reign  of  her  present  Majesty,  inti- 


7  W.  4  &  1 

Vict.  c.  83. 


Penalty  on 
company  fail- 
ing to  keep 
or  deposit 
such  copies. 


Act  not  to 
extend  to 
Scotland. 

Act  may  be 
amended  this 

session. 


Ajypendix — Statutes. 

tuled  "  An  Act  to  compel  Clerks  of  the  Peace  for 
Counties,  and  other  Persons,  to  take  the  Custody  of 
such  Documents  as  shall  be  directed  to  be  deposited 
with  them  under  the  Standing  Orders  of  either  House 
of  Parliament." 

163.  If  the  company  shall  fail  to  keep  or  deposit,  as 
hereinbefore  mentioned,  any  of  the  said  copies  of  the 
special  act,  they  shall  forfeit  twenty  pounds  for  every 
such  offence,  and  also  five  pounds  for  every  day  after- 
wards during  which  such  copy  shall  be  not  so  kept  or 
deposited. 

164.  And  be  it  enacted,  that  this  act  shall  not  extend 
to  Scotland. 

165.  And  be  it  enacted,  that  this  act  may  be  amended 
or  repealed  by  any  act  to  be  passed  in  the  present  session 
of  parliament. 


SCHEDULE  referred  to  by  the  foregoing  Act. 


to  wit. 

Be  it  remembered,  tliat  on  the  day  of  in  the  year 

of  our  Lord  A.  B.  is  convicted  before  us,  C,  D.,  two  of 

her  majesty's  justices  of  the  peace  for  the  county  of  [here 

describe  lite  offence  generuily,  and  ihe  time  and  place  when  and 
where  committed],  contrary  to  the  [here  name  the  special  act]. 
Given  under  our  hands  and  seals  the  day  and  year  first  above 


written. 


CD. 


I 


8  &  9  Vict.  c.  96—RaUwai/s  Clauses. 


8  &  9  Vict.  c.  96. 

An  Act  to  restrict  the  Powers  of  selling  or  leasing 
Railways  contained  in  certain  Acts  of  Parliament 
relating  to  such  Railways.         [4th  August,  184o.] 

Whereas  provisions  have  been  introduced  in  various 
acts  of  parliament,  during  the  present  session  of  parlia- 
liament,  relating  to  railways,  giving  to  railway  companies 
general  powers  of  granting  or  accepting  a  lease,  sale,  or 
transfer  of  their  own  or  other  lines  of  railway  ;  and  it  is 
expedient  that  such  powers  should  he  restrained :  Be  it 
therefore  enacted  by  the  Queen's  most  excellent  majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and  commons,  in  this  present  parliament 
assembled,  and  by  the  authority  of  the  same,  that  it  sliall  No  railway 
not  be  lawful  for  the  companv  of  proprietors  of  anv  rail-  '^""•I'^ny  "<> 

,  .  p  ^      J         f-i-  .*'  .gram  or  ac- 

way,  by  virtue  oi  any  powers  contained  m  any  act  passed  cept  a  lease 
in  the  present  session,  to  make  or  grant,  or  for  any  other  "■■  ""ansier  of 
railway  company  or  party,  by  virtue  of  any  such  powers,  unJesT'umier 
to  accept,  a  sale,  lease,  or  other  transfer  of  any  railway,  a  disiinct 
unless  under  the  authority  of  a  distinct  provision  in  some  a,',"acJ'^"  "[. 
act  of  parliament  to  that  effect  specifying  by  name  the  tying  tbe  par- 
railway  to  be  so  leased,  sold,  or  transferred,  and  the  com-  •'«'• 
pany  or  party  by  whom  such  lease,  sale,  or  transfer  may 
be  respectively  made,  granted,  or  accepted. 


II' 


ccxvib  Appendix — Statutes. 


8  &  9  Vict.  c.  11^. 

An   Act  to  facilitate    the  Admission  in  Evidence  of 
certain  official  and  other  Documents. 

[8th  August,  1845.] 

Whereas  it  is  provided  by  many  statutes  that  various 
certificates,  official  and  public  documents,  documents  and 
proceedings  of  corporations  and  of  joint  stock  and  other 
companies,  and  certified  copies  of  documents,  bye  laws, 
entries  in  registers  and  other  books,  sliall  be  receivable  in 
evidence  of  certain  particulars  in  courts  of  justice,  pro- 
vided they  be  respectively  authenticated  in  the  manner 
prescribed  by  such  statutes:  And  whereas  the  beneficial 
effect  of  these  provisions  has  been  found  by  experience  to 
be  greatly  diminished  by  the  difficulty  of  proving  that  the 
said  documents  are  genuine  ;  and  it  is  expedient  to  faci- 
litate   the  admission    in  evidence  of  such  and  the  like 
documents :  be  it  therefore  enacted  by  the  Queen's  most 
excellent  majesty,  by  and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal,  and  commons,  in  this 
present  parliament  assembled,  and  by  the  authority  of  the 
Certain  do-     Same,  that  whenever  by  any  act  now  in  force  or  hereafter 
cuments  to  be  ^q  be  in  forcc  any  certificate,  official  or  public  docu- 
evWence  '"     ment,  or  document  or  proceeding  of  any  corporation  or 
wiihont  proof  joint  stock  or  other  company,  or  any  certified  copy  of 
of  seal  or  sig-  ^       document,  bye  law,  entry  in  any  reojister  or  other 

nature,  &C.OI        J  p  *^  i  i^  i     "li  i   ^  •       ,  i      . 

person  sign-  book,  or  01  any  other  proceeding,  shall  be  receivable  in 
ing  the  same,  evidence  of  any  particular  in  any  court  of  justice,  or 
before  any  legal  tribunal,  or  either  house  of  parliament, 
or  any  committee  of  either  house,  or  in  any  judicial 
proceeding,  the  same  shall  respectivelj'^  be  admitted  in 
evidence,  provided  thej'  respectively  purport  to  be  sealed 
or  impressed  with  a  stamp,  or  sealed  and  signed,  or  signed 
alone,  as  required,  or  impressed  with  a  stamp  and  signed, 
as  directed  by  the  respective  acts  made  or  to  be  here- 
after made,  without  any  proof  of  the  seal  or  stamp, 
where  a  seal  or  stamp  is  necessary,  or  of  the  signature  or 
of  the  official  character  of  the  person  appearing  to  have 
signed  the  same,  and  without  any  further  proof  thereof 


8  Sf  9  Vict.  c.  113 — Admission  of  Documents.  ccxvie 

in  every  case  in  which  the  original  record  could  have 
been  received  in  evidence. 

2.  And  be  it  enacted,  that  all  courts,  judges,  justices,  Courts  &r. 
masters  in   Chancery,  masters  of  courts,  commissioners  ".* '^""'j'"''' 
judicially  acting,  and  other  judicial  officers,  shall  hence-  si^l  "(',',re  o"' 
forth  take  judicial  notice  of  the  signature  of  any  of  the  ^qmiy  or 
equity  or  common  law  judges  of  the  superior  courts  at  ^„j"'""'' ' '^ 
Westminster,  provided  such  signature  be  attached  or  ap-''"  *'"^'' 
pended  to  any  decree,  order,  certificate,  or  other  judicial 

or  official  document. 

3.  And  be  it  enacted,  that  all  copies  of  private  and  Copies  of 
local  and  personal  acts  of  parliament  not  public  acts,  if  [Jlini'^rt''b"' 
purporting  to  be  printed  by  the  Queen's  printers,  and  all  Q»^L'i  ^ 
copies  of  the  journals  of  either  House  of  Parliament,  and  !"■'"|<^'•■ 

of  royal  proclamations,  purporting  to  be  printed  by  the  pa"iia''i,i',."[ 
printers  to  the  Crown  or  by  the  printers  to  either  House  «"i'i  pfcla- 
of  Parliament,  or  by  any  or  either  of  them,  shall  be  ad-  "h''''""k, 

1  .  ,  I  PI  11  -1  •        .  aaiiiisaible   as 

mitted  as  evidence  thereot  by  all  courts,  judges,  justices,  evidence. 
and  others,  without  any  proof  being  given  that  such 
copies  were  so  printed. 

4.  Provided  always,  and  be  it  enacted,    that  if  any  Persons 
person  shall  forge  the  seal,  stamp,  or  signature  of  any  'ofsiins  ^^eai, 
such  certificate,  official  or  public  document,  or  document  nrtiTre'oi  cur- 
or  proceeding  of  any  corporation  or  joint  stock  or  other  i.iii;  <iocii- 
company,  or  of  any  certified  copy  of  any  document,  bye  pi^i'j'J'aliy 
law,  entry  in  any  register  or  otiier  book,  or  otiier  pro-  priva  e  act 
ceeding  as  aforesaid,  or  shall  tender  in  evidence  any  such  ""''  '"''"= 
certificate,  official  or  public  document,  or  document  or  g,','iViy"of 
proceeding  of  any  corporation  or  joint  stock  or  other  felony, 
company,  or  any  certified  copy  of  any  document,  bye  law, 

entry  in  any  register  or  other  book,  or  of  any  other  pro- 
ceeding, with  a  false  or  counterfeit  seal,  stamp,  or  signa- 
ture thereto,  knowing  the  same  to  be  false  or  counterfeit, 
whether  such  seal,  stamp,  or  signature  be  tliose  of  or  re- 
lating to  any  corporation  or  company  already  established, 
or  to  any  corporation  or  company  to  be  hereafter  esta- 
blished, or  if  any  person  shall  forge  the  signature  of  any 
such  judge  as  aforesaid,  to  any  order,  decree,  certificate, 
or  other  judicial  or  official  document,  or  shall  tender  in 
evidence  any  order,  decree,  certificate,  or  otli(;r  judicial 
or  official  document  with  a  false  or  counterfeit  signature 
of  any  such  judge  as  aforesaid  thereto,  knowing  tin;  same 
to  be  false  or  counterfeit,  or  if  any  jx^rson  shall  i)rint  any 
copy  of  any  private  act  or  of  the  journals  of  eitiier  Ifousc 
of  Parliament,  which  copy  shall  falsely  purport  to  iiavc 
been  printed  by  the  printers  to  the  Crown,  or  by  the 


ccxvitZ 


Not  to 
extend  lo 
Scotland. 
Alieraiion 
of  Act. 


Commence- 
ment of  act. 


Appendix — Statutes. 

printers  to  either  House  of  Parliament,  or  by  any  or 
either  of  them,  or  if  any  person  shall  tender  in  evidence 
any  such  copy,  knowing  that  the  same  was  not  printed 
by  the  person  or  persons  by  whom  it  so  purports  to  have 
been  printed,  everj'  such  person  shall  be  guilty  of  felony, 
and  shall  upon  conviction  be  liable  to  transportation  for 
seven  years,  or  to  imprisonment  for  any  term  not  more 
than  three  nor  less  than  one  year,  with  hard  labour : 
Provided  also,  that  whenever  any  such  document  as  be- 
fore mentioned  shall  have  been  received  in  evidence  by 
virtue  of  this  act,  the  court,  judge,  commissioner,  or 
other  person  officiating  judicially  who  shall  have  ad- 
mitted the  same,  shall,  on  the  request  of  any  party  against 
whom  the  same  is  so  received,  be  authorized,  at  its  or  at 
his  own  discretion,  to  direct  that  the  same  shall  be  im- 
pounded, and  be  kept  in  the  custody  of  some  officer  of 
the  court  or  other  proper  person,  until  further  order  touch- 
ing the  same  shall  be  given,  either  by  such  court,  or  the 
court  to  which  such  master  or  other  officer  belonged,  or 
by  the  persons  or  person  who  constituted  such  court,  or 
by  some  one  of  the  equity  or  common  law  judges  of  the 
superior  courts  at  Westminster  on  application  being  made 
for  that  purpose. 

5.  And  be  it  enacted,  that  this  act  shall  not  extend  to 
Scotland. 

6.  And  be  it  enacted,  that  this  act  may  be  repealed, 
altered,  or  amended  during  this  present  session  of  parlia- 
ment. 

7.  And  be  it  enacted,  that  this  act  shall  take  effect 
from  the  first  day  of  November  next  after  the  passing 
thereof. 


APPENDIX  11. 

REPORTS    OF    PROCEEDINGS 

BEFORE 

Committees  oC  f^ousic  of  Commons. 


SELECT  COMMITTEE  ON  GROUP  (X)  OF  RAILWAYS, 

COMPRISING 

1.  London  and  York. 

2.  Cambridge  and  Lincoln. 

3.  Direct  Northern  (No.  2). 

4.  Eastern  Counties  (Cambridge  and  Huntingdon). 

5.  Eastern  Counties  (Ely  and  Whittlesea). 

6.  Eastern  Counties  (Hertford  and  Biggleswade). 

7.  Midland  Railways  Extension  (Swinton  and  Lincoln). 

8.  Midland  Railways  Extension  (Lincoln  and  Ely). 

9.  Sheffield  and  Lincolnshire  Junction. 

10.  York  and  North  Midland  and  Doncaster  Extension. 

11.  Tottenham  and  Farringdon  Street  Junction. 

Upon  the  meeting  of  the  committee  the  titles  of  the  above 
projects,  &c.,  referred  to  the  committee,  were  read,  as  like- 
wise the  petitions  against  them  respectively. 

Parties  were  informed  that  the  committee  would  require 
every  petitioner  against  any  of  the  bills  or  ])rqiccts  l)efore 
the  committee  then  to  enter  an  appearance  if  they  proposed 
to  proceed  with  their  case  in  opposition  to  the  bill,  and  any 
petitioner  failing  to  do  so  would  not  be  permitted  to  appear 
at  any  subsequent  stage  of  the  proceedings,  (a) 

(o)  Semble  this  requisition  did  not  apply  to  the  case  of  parties, 
who  at  the  time  of  the  meeting  of  the  committee  liad  presented  no 
petition,  by  reason  of  the  project,  &c.,  against  which  they  wished 
to  petition,  not  having  then  attained  the  form  of  a  bill,  &c. ;  but 
it  was  competent  for  such  parties,  on  subsequently  presenting 
their  petition  within  the  time  limited  liy  the  resolutions  of  the 
house,  to  appear  accordingly.  (See  the  case  of  -Mr.  Mas,  post, 
p.  ccxxxv.,  and  that  of  ftlr.  Dimsdale,  in  Group  (S),  Supp. 
to  Votes,  1845,  p.  608.)  Tetitioners  to  obtain  a  hearing  must 
not  only  have  taken  care  to  enter  an  appearance  in  pursuance  of 
the  above  requisition,  but  must  likewise  have  appeared  and  iJe- 

K  K 


ccxviii  Appendix. 

The  room  was  cleared. 

The  parties  were  called  in,  and  counsel  having  stated,  in 
answer  to  a  question  from  the  chairman  "  Whether  parties 
had  agreed  as  to  the  order  of  precedence  in  which  the  seve- 
ral bills  and  projects  should  be  proceeded  with,"  that  it  was 
the  general  wish  that  the  Ely  and  Whittlesea  deviation, 
being  virtually  unopposed,  should  be  first  considered. 

The  loom  was  cleared. 

The  committee  deliberated  and  resolved,  "  That  the  Ely 
and  Whittlesea  should  be  first  proceeded  with,  and  with  re- 
gard to  the  other  bills  and  projects  to  group  in  one  class  the 
London  and  York  Railway,  Cambridge  and  Lincoln  Rail- 
•way,  Direct  Northern  Railway,  the  two  Midland  Railways 
Extension,  the  Sheffield  and  Lincolnshire,  the  York  and 
North  Midland  (Doncaster  Extension),  and  the  Tottenham 
and  Farringdon  Street  Junction  Railway ;  and  that  that 
class  should  be  next  proceeded  with." 

"  That  the  London  and  York  line  be  first  taken  into  con- 
sideration."    Parties  were  called  in  and  informed  thei-eof. 

Counsel  applied  to  the  committee  to  include  the  Eastern 
Counties  (Hertford  and  Biggleswade)  in  the  first  sub- 
group, (t)       .  . 

The  Committee  delibei-ated,  and  decided  against  the  ap- 
plication. 

The  Committee  then  proceeded  with 

The  Eastern  Counties  {Eli/  and  IV/nttksea)  Bill. 

Mr.  Wells  stated,  on  behalf  of  the  Bedford  Level  Corpo- 
ration, who  had  pi-esented  a  petition  against  the  bill,  that 
he  had  no  opposition  to  offer  to  the  passing  of  the  pi-eamble. 

Mr.  Hildyard  stated  the  case  in  fdvour  of  the  bill,  and 
called  witnesses  in  proof  of  the  preamble,  and  the  matters 
required  to  be  examined  into  by  committees  on  railway 
bills. 

The  preamble  was  read  and  agreed  to. 

raanded  a  hearing  while  the  matters  against  which  their  petition 
was  directed  were  still  under  the  deliberation  of  the  committee. 
For  instance,  the  committee  on  Group  (D)  refused  to  hear 
counsel  for  the  IManchester,  Bolton  and  Bury  Canal  Com- 
pany, against  certain  clauses  of  the  Blackburn,  £>:c.,  Railwaj- 
Bill,  neither  counsel  nor  agent  having  appeared  when  the  clauses 
in  question  were  regularly  considered  and  agreed  to  by  the  com- 
mittee. 

(b)  Applications  of  this  kind  to  shift  bills  from  one  sub-group 
to  another,  or  to  bring  a  bill  on  in  a  particular  stage  of  the  pro- 
ceedings, &.C.,  were  of  constant  occurrence  before  committees. 


Proceedings  before  Commltlecs.  ccxix 

The  committee  next  went  through  the  clauses  of  the  bill, 
paragraph  by  paragraph,  inade  amendments,  and  added 
clauses  and  considered  and  agreed  to  their  report. 

The  committee  then  proceeded  to  the  consideration  of  the 
first  sub-group,  commencing  with  the 

Lojidon  and  York  Bill. 

The  petitioners  against  the  bill  were  required  severally 
to  state  whether  they  opposed  the  preamble  of  the  bill,  and 
if  so  to  give  in  the  names  of  their  respective  counsel. 

Mr.  Crowder  and  Mr.  Pickering  stated  that  they  ap- 
peared against  the  preamble  on  behalf  of  Sir  William  M. 
Milner,  a  petitioner  against  the  bill,  and  various  others  did 
the  same  on  behalf  of  different  petitioners. 

The  agents  for  the  remaining  petitions  stated  that  thev 
did  not  at  pi'esent  appear  further  in  opposition  to  the  bill. ' 

Mr.  Serjeant  Wrangham  then  proceeded  to  state  the  case 
in  favour  of  the  bill. 

On  the  conclusion  of  his  address,  the  counsel  for  the  Shef- 
field and  Lincolnshire  line  applied  to  the  committee  for  the 
purpose  of  procuring  their  recommendation  to  the  opposite 
counsel,  to  inform  him  of  the  time  when  that  portion  of 
theii"  case,  which  competed  with  the  scheme  of  tlic  appli- 
cant's clients  would  be  taken,  on  the  ground  that  they  had 
many  witnesses  in  tovv'U  at  a  great  expense.  The  committee 
declined  to  interfere,  leaving  it  to  be  arranged  between 
the  counsel,  (c) 

The  counsel  of  the  promoters  then  proceeded  with  the 
general  evidence  as  to  the  merits  of  their  line,  showing 
the  advantages  it  was  calculated  to  confer  on  the  districts  it 
traversed.     For  this  purpose  they  called  a  great  variety  of 

(c)  In  the  committee  on  Group  (KK),  Mr.  Calvert,  on  the 
part  of  the  promoters  of  the  Liverpool,  Ormskirk  and  Preston 
Railway,  applied  to  the  committee  for  their  decision  as  to 
whether  the  portions  of  the  schemes  comprehended  in  tlie  Liver- 
pool and  Manchester  Railway  Bill  miglit  not  be  divided  so  as  to 
allow  him  to  withdraw  from  the  connnittee  for  the  present,  ana  to 
leave  the  case  to  be  conducted  as  between  the  Liverpool  and 
Manchester  Railway  Company  and  tlie  promoters  of  the  Liver- 
pool and  Bury  Railway. 

Mr.  Lowndes,  on  the  part  of  the  promoters  of  the  Liverpool 
and  Manchester  Railway  Bill,  contended  that  lie  should  be  al- 
lowed to  open  his  whole  case.  The  committee  decided  that  they 
would  not  interfere  with  the  manner  in  which  Mr.  Lowndes 
might  desire  to  open  his  case. 

K  K  2 


ccxx  Ai^pendix. 

persons  locally  interested  in  the  different  parts  of  the  coun- 
try traversed  by  their  line  to  speak  to  the  state  of  trade, 
agriculture,  &c.,  throughout  the  districts  in  question,  the 
quantity  and  quality  of  their  products,  the  inadequacy  of 
the  existing  means  of  traffic  and  communication,  the  in- 
creased facility  in  that  respect  offered  by  the  line  of  the  pro- 
moters, &c.  The  witnesses  were  severally  cross-examined 
by  the  counsel  opposing  the  bill. 

At  the  close  of  the  examination  in  chief  of  the  first  wit- 
ness called  for  this  purpose,  Mr.  AVells,  for  the  Eastern 
Counties  Railway,  claimed  a  right  to  cross-examine  the  wit- 
ness. 

Mr.  Serjeant  Kinglake,  on  behalf  of  the  promoters,  ob- 
jected to  Mr.  Wells'  cross-examination  on  the  ground  that 
neither  of  the  Eastern  Counties'  lines  had  been  placed  in  the 
sub-group  under  consideration  by  the  committee  as  a  com- 
peting line  with  the  London  and  York. 

Mr.  Austin,  on  behalf  of  the  promoters  of  the  Eastern 
Counties  schemes,  thereupon  made  an  application  to  the 
committee  that  they  might  be  included  in  the  sub-group 
under  consideration,  on  the  ground  that  they  were  distinctly 
competing  schemes  with  the  others  already  in  that  sub- 
group ;  and  if  they  were  excluded  they  would  of  course  be 
debarred  from  cross-examination  of  the  witnesses  brought 
forward  in  favour  of  the  rival  schemes. 

The  committee  resolved,  "  That  the  Eastern  Counties 
schemes,  viz.  the  Cambridge  and  Huntingdon  and  the 
Hertford  and  Biggleswade  branches,  should  be  added  to  the 
sub-group  ] ." 

The  chairman  was  at  the  same  time  insti-ucted  to  in- 
timate to  Mr.  Austin  that  he  must  confine  himself  to  points 
affecting  the  particular  merits  of  those  branches. 

The  witness  was  then  cross-examined  by  Mr.  Wells. 

On  Mr.  Cockburn,  on  the  part  of  the  Direct  Northern, 
rising  to  cross-examine  the  witness, 

Mr.  Serjeant  Kinglake,  on  behalf  of  the  London  and 
York,  objected  to  Mr,  Cockburn's  cross-examining,  on  the 
ground  that  in  the  case  of  the  Direct  Northern,  the  Stand- 
ing Orders  Committee  having  reported  to  the  house  that 
the  standing  orders  had  not  been  complied  with,  and  that 
they  were  of  opinion  that  the  standing  orders  ought  not  to 
be  dispensed  with,  the  Direct  Northern  could  not  be  con- 
sidered as  having  any  locus  standi  before  the  committee. 

The  committee  resolved,  "  That  the  Direct  Northern  be 
admitted  as  a  party  before  the  committee." 

Among  the  witnesses  called  to  speak  to  this  part  of  the 


Proceedings  before  Committees.  ccxxi 

promoters'  case,  was  one  who  gave  evidence  as  to  the 
reduction  of  the  charges  for  conveyance  of  a  particnlar  ar- 
ticle that  would  ensue,  if  the  London  and  York  Railway 
were  made.  It  appeared,  however,  that  he  did  not  know 
the  exact  maximum  of  tolls  proposed  to  be  charged  per  mile 
by  the  London  and  York,  and  therefore  could  not  state 
the  exact  data  on  which  his  calculations  as  to  the  reduction 
were  made.  The  committee  suggested  to  the  promoters 
that  they  should  furnish  the  committee  with  positive  evidence 
on  this  point.  The  evidence,  however,  of  the  witness  was 
permitted  to  be  taken,  subject  to  the  condition  of  the  re- 
quisite evidence  on  the  subject  of  the  tolls  being  given  after- 
wards. 

_Mr.  Serjeant  Kinglake,  for  the  promoters,  stated  that  the 
evidence  of  Mr.  Richard  Hervey,  of  Lincoln,  was  necessary 
to  the  establishment  of  the  case  in  favour  of  the  bill,  but  that 
the  promoters  were  unable  to  procure  his  attendance  by  the 
ordinary  means,  and  they  had  now  to  request  that  the  com- 
mittee would  apply  to  the  house  for  an  order  to  enforce  his 
attendance. 

Mr.  Rose  (the  solicitor  for  the  London  and  York  line) 
was  called  and  examined  relative  to  the  application  to  Mr. 
Hervey. 

The  chairman  was  instructed  to  report  the  case  to  the 
house. 

Mr.  Paget  (on  behalf  of  the  London  and  York)  having 
stated  in  the  course  of  the  proceedings  that  he  proposed  to 
divide  his  traffic  case,  and  give  evidence  then  as  to  the  dis- 
trict between  Huntingdon  and  London, 

The  counsel  for  the  various  competing  sclicmcs  objected 
to  the  proposed  course,  and  contended  that  tlie  traffic  evi- 
dence should  be  given  on  the  whole  line. 

The  committee  resolved,  "  That  they  would  leave  counsel 
for  the  bill  to  conduct  the  case  as  they  thought  most  {d)  ad- 
visable." 

Mr.  Serjeant  Allen  (who  appeared  on  behalf  of  certain 
landowners  opposed  to  the  Sheffield  and  Liiicolnsliire  line) 
having  claimed  the  right  of  cross-examining  the  London 
and  York  witnesses,  with  a  view  of  supporting  liis  client's 
opposition  to  the  Sheffield  and  Lincolnsliire  scheme,  he  was 
held  by  the  committee  to  have  no  locus  standi  for  that  pur- 
pose at  that  stage  of  the  proceedings.  (<?) 

Mr.  Burke,  parliamentary  agent,  on  behalf  of  tlie  Shef- 

(d)  See  ante,  n.  (c),  p.  ccxix. 

(e)  So  in  Group  (N),  Mr,  Bliss,  who  appeared  for  a  petitioner 


i 


ecxxii  Appendix. 

field  and  Lincolnshire  Railway  Bill  applied  to  the  commit- 
tee with  the  view  of  procuring  the  removal  of  that  scheme 
from  the  list  of  projects  before  the  committee,  on  the  ground 
that  being  an  eastern  and  western  line  it  could  have  little 
or  nothing  to  do  with  railways  running  north  and  south,  and 
that  there  was  but  little  probability  of  its  coming  before  the 
house  that  session,  unless  it  were  refen-ed  to  some  other 
committee. 

The  chairman  stated  the  opinion  of  the  committee  to  be 
that  they  could  not  interfere  with  the  bills  refeiTed  to  them 
by  the  selection  committee,  and  that  they  had  no  power  to 
remove  it  from  their  list,  unless  ordered  to  do  so  by  the 
house. 

Mr.  Burke  stated  that  the  promoters  of  the  line  intended 
to  make  an  application  to  the  house  to  that  effect,  but  that 
they  had  thought  proper  to  apply  in  the  first  instance  to  the 
committee,  lest  it  should  appear  that  they  had  acted  dis  - 
respectfully  toward  them. 

Evidence  as  to  Traffic  Tables.  Upon  the  conclusion 
of  the  general  traffic  evidence  the  traffic  tables  were  put 
in ;  (g)  and  the  parties  by  whom  they  had  been  prepared 
were  called  as  witnesses  to  support  them. 

The  tables  had  been  formed  by  taking  the  various  items 

against  the  York  and  North  JMidland  ( Goole  Branch),  which 
was  a  competing  line  with  the  Wakefield,  Pontefract  and  Goole 
Railway,  proposed  to  cross-examine  a  witness  called  on  be- 
half of  the  latter  scheme,  his  object  in  fact  being  to  support 
the  pi-omoters'  case  ;  the  committee  decided  that  Mr.  Bliss  could 
not  be  allowed  to  cross-examine  the  witness.  Again,  in  the  com- 
mittee on  Group  (E),  on  the  counsel  for  a  landowner  opposing 
the  Northumberland  line,  which  was  a  competing  line  with  the 
Newcastle  and  Berwick,  claiming  to  re-examine  a  witness  called 
on  behalf  of  the  latter  scheme,  and  who  had  been  cross-ex- 
amined by  the  counsel  for  the  Northumberland  line,  it  was 
held  that  he  could  not  be  heard. 

(g)  In  order  to  prove  the  traflBc,  the  usual  course  for  the  pro- 
moters was  to  put  in  their  traffic  tables,  and  call  the  party  by  whom 
they  had  been  prepared  to  explain  them.  In  one  case  it  was 
held  that  the  testimony  of  a  witness  conversant  with  the  prepa- 
ration of  such  tables  was  admissible  to  show  the  correctness  of 
the  principles  on  which  they  had  been  compiled  in  the  particular 
case. 

Latterly  it  has  not  been  the  practice,  though  formerly  it  was 
otherwise,  to  call  the  parties  actually  employed  to  make  the  ob- 
servations from  which  the  tables  have  been  compiled,  or  to  put  in 
the  books  in  which  such  observations  were  recorded ;  though  it 
was  of  course  competent  for  the  other  side  to  call  for  them  if  they 


Proceedings  before  Committees.         ccxxiii 

of  the  traffic  already  existing  by  roads,  canals,  &c.,  which  it 
was  assumed  would  fall  into  the  railway,  and  then  multiplying 
that  in  certain  proportions  to  give  the  increase  that  might 
be  expected  from  the  formation  of  the  railway. 

It  appearing,  on  the  traffic  tables  being  put  in  that  the 
traffic  on  the  line  was  divided  into  separate  districts, 

Mr.  Webster  on  the  part  of  the  Direct  Northern,  and 
Mr.  Hildyard  on  the  part  of  the  Cambridge  and  Lincoln 
and  Eastern  Counties,  objected  to  the  form  of  the  tables. 

The  committee  resolved,  "  That  they  would  permit  the 
promoters  of  the  bill  to  put  in  the  tables  in  the  shape  in  which 
they  now  proposed,  reserving  to  themselves  the  power, 
should  they  so  think  fit  at  a  future  stage,  of  calling  upon 
them  to  amend  the  form  of  their  tables  by  uniting  them  in 
one." 

At  the  close  of  the  examination  in  chief  of  the  first  witness 
called  to  speak  to  the  tables,  Mr.  Wells,  on  behalf  of  the 
Eastern  Counties,  applied  to  the  committee  for  the  purpose 
of  inducing  the  counsel  conducting  the  case  of  the  promo- 
ters to  proceed  with  their  engineering  evidence  forthwith, 
as  it  was  impossible  to  go  on  with  the  cross-examination  as 
to  the  traffic  tables,  on  account  of  the  short  time  they  had 
been  in  the  hands  of  counsel,  who  would  therefore  be  com- 
pelled to  ask  more  questions  than  would  otherwise  be  ne- 
cessary. 

Mr.  Barker,  on  behalf  of  the  Midland  Counties,  made  a 
similar  application  for  a  postponement  of  the  cross-exami- 
nation. 

After  considerable  discussion,  the  committee,  who  cleared 
the  room  to  consider  the  question,  stated  that  they  would 
adjourn  to  11  o'clock  the  next  day,  in  order  to  give  time 
for  counsel  to  inform  themselves  on  the  traffic  returns; 
Mr.  Serjeant  Kinglake  then  consented  to  enter  upon  the 
engmeering  evidence  for  his  clients,  in  order  to  save  them 
expense,  but  he  would  not  consent  that  the  course  of  that 
evidence  should  be  broken  in  upon  by  the  resumption  of 
the  cross-examination  with  regard  to  traffic  the  next  day; 
and  the  committee  agreed  to  finish  the  engineering  evidence 
before  they  proceeded  to  other  matters. 

pleased.  The  committee  sometimes  required  to  be  furnished  with 
further  evidence  as  to  the  existing  traffic  of  the  country  to  be 
traversed  by  the  railway.  (See  Proceedings  of  Cornmillee  on 
Group  (K),  Supp.  to  Votes,  1845,  p.  1389).  See  however  as 
to  particular  traffic  evidence,  post,  App.  III.  Sect.  A  . 


ccxxiv  Appendix. 

Copies  of  the  traffic  tables  were  likewise  furnished  by  the 
promoters  to  the  committee  and  to  the  opposing  counsel. 

Engineering  Evidence.  Mr.  Serjeant  Kinglake  then  pro- 
ceeded to  call,  on  behalf  of  the  promoters  of  the  bill,  Mr. 
Cubitt,  their  engineer  in  chief.  Various  other  engineers, 
surveyors,  &c.,  were  also  called  on  behalf  of  the  promo- 
ters to  speak  to  the  accuracy  of  the  estimates,  the  price  of 
the  land,  &c.,  and  were  severally  cross-examined  by  the  op- 
posing counsel.  In  the  course  of  the  cross-examination  of 
Mr.  Cubitt,  the  committee,  upon  application  of  opposing 
counsel,  decided  that  Mr.  Cubitt  should  furnish  summary 
details  in  writing  of  the  works  on  certain  portions  of  the 
line,  in  order  to  form  the  basis  of  the  cross-examination, 
and  also  to  serv.e  as  a  guide  for  the  production  of  rebutting 
evidence  on  the  part  of  the  opponents  of  the  bill. 

The  committee  also  allowed  the  opposing  counsel,  in 
order  to  test  the  accuracy  of  the  engineering  calculations,  to 
cross-examine  as  to  the  costs  of  works  (h)  on  existing  rail- 
ways. 

It  appearing  that  the  evidence  for  the  London  and  York 
Railway  would  shortly  close,  the  opposing  counsel  applied  to 
the  committee,  and  stated  that  it  would  be  a  great  con- 
venience to  the  parties  if  the  committee  would  now  inti- 
mate the  order  in  which  they  would  hear  the  opposing 
parties,   the  counsel  opposing  the  bill  contending  that  the 

(h)  It  is  competent  for  counsel  opposing  a  railway  bill,  in 
order  to  test  the  accuracy  of  the  estimates,  to  cross-examine 
generally  as  to  the  value  set  by  the  promoters  on  the  land  re- 
quired for  the  purposes  of  their  line,  or  on  any  particular  de- 
scription of  such  land,  such  as  garden  ground  for  instance ; 
though  they  cannot  do  so  in  regard  of  this  or  that  particular  parcel 
of  ground,  as  it  might  have  the  effect  of  prejudicing  the  company, 
in  case  of  their  subsequently  having  to  go  before  a  jury  to  assess 
its  value. 

Though  counsel  cannot  cross-examine  as  to  the  estimate  of 
the  value  of  a  particular  piece  of  land,  they  may  do  so  as  to  the 
estimate  of  the  costs  of  a  particular  embankment,  &c.,  though 
this  has  been  objected  to  on  the  ground  that  the  permitting  it 
would  tend  to  prejudice  the  company  in  their  dealings  with  the 
contractor  for  the  work  ;  but  the  objection  was  overruled  by  the 
committee.  (In  committee  on  Group  (B),  Supp.  to  Votes  of 
Commons,  1845,  p.  496.)  And  where  the  company  have  made 
a  bargain  with  a  particular  landowner  for  his  land,  &c.,  counsel 
may,  it  seems,  cross-examine  as  to  the  sum  agreed  to  be  paid. 
(So  ruled  by  committee  on  Group  (FF),  Supp.  to  Votes  of  Com- 
mons, 1845,  p.  1249.) 


Proceedings  before  Committees.  ccxxv 

case  of  landowners  should  be  postponed  till  the  whole  of  th  ® 
cases  of  the  competing  schemes  should  have  been  coucluded' 
and  their  several  comparative  merits  decided  upon. 

The  committee  resolved,  "  That  the  landowners  and  other 
opponents  should  be  heard  next  in  order  as  against  the  Lon- 
don and  York  bill." 

At  the  close  of  the  engineering  evidence,  the  cross-ex- 
amination as  to  the  traffic  tables,  which  had  been  postponed 
until  that  time,  was  gone  into. 

Mr.  Serjeant  Wrangham  having  stated  that  he  did  not 
propose  to  ofter  any  further  evidence  in  favour  of  the  bill, 

The  committee  proceeded  to  the  consideration  of  the  case 
of  the  landowners  petitioning  against  the  bill,  and 

Mr.  Denison,  who  stated  that  he  appeared  in  support  of 
the  petition  of  the  Earl  of  Scarborough,  proceeded  to  call  as 
■witnesses  Mr.  Powell,  the  steward  of  the  petitioner,  and 
Mr.  Walker,  an  engineer,  who  were  examined  by  Mr. 
Denison,  and  cross-examined  by  Mr.  Paget. 

Mr.  Denison  was  heard  in  support  of  the  petition. 

Mr.  Paget  in  reply. 

The  other  petitions  of  landowners  were  then  gone  through 
in  a  similar  manner,  the  counsel  in  support  of  them  being 
heard  either  at  the  commencement  or  close  of  their  evidence. 

The  case  of  the  landowners  against  the  London  and  York 
bill  having  been  concluded, 

Mr.  Hildyard  on  the  part  of  the  Cambridge  and  Lincoln 
Railway  Company  stated  tliat  lie  had  arranged  his  case  so 
as  to  fuse  together  the  rebutting  evidence  against  tlie  Lon- 
don and  York  case,  and  the  evidence  in  chief  in  support  of 
the  substantive  case  on  the  merits  of  the  Cambridge  and 
Lincoln  line,  and  the  counsel  for  the  other  lines  competing 
with  the  London  and  York  proposed  to  adopt  the  same 
course. 

The  committee  intimated  their  approval  of  the  course  pro- 
posed. 

The  committee  then  proceeded  with  the  consideration  of 
the 

Cambridge  and  Lincoln  Railway  Bill. 

Mr.  Hildyard  proceeded  to  call  witnesses  in  favour  of  the 
bill  and  against  the  case  of  the  London  and  York. 

Mr.  Rendel,  engineer,  {i)  was  called  and  examined  l)y 
Mr.  Hildyard. 

(i)  The  case  of  the  Cambridge  and  Lincoln,  it  may  be  rc- 
K  K  .3 


ccxxvi  Appendix. 

In  the  course  of  his  examination,  it  having  been  proposed 
to  put  in  a  table  instituting  a  comparison  between  the  popu- 
lation in  the  district  within  ten  miles  on  either  side  of  the 
London  and  York  line  and  the  population  within  a  similar 
distance  of  the  Cambridge  and  Lincoln  line,  subject  to  this 
extension,  that  in  respect  of  the  latter  case  it  was  proposed  to 
take  into  account  the  population  in  that  portion  of  an  ima- 
ginary circle  (of  which  the  termination  of  branches  contem- 
plated, but  not  before  the  committee,  was  a  centre,)  which 
was  beyond  ten  miles  from  the  main  line, 

Mr.  Serjeant  Wrangham  objected  to  the  course  proposed, 
and  contended  that  Mr.  Hildyard  had  no  right  to  give  evi- 
dence with  respect  to  population  within  ten  miles  of  branches 
ha\ang  no  parliamentary  existence,  but  only  suggested  in 
the  report  of  the  Board  of  Trade. 

The  committee  resolved,  "  That  the  committee  could  not, 
with  a  view  of  instituting  the  proposed  comparison,  admit 
the  population  on  lines  not  before  parliament.  If  the  pro- 
moters of  the  Cambridge  and  Lincoln  line  desired  to  show  that 
a  further  portion  of  the  country  beyond  the  ten  miles  could 
be  served  by  their  line  as  before  the  committee,  it  might  be 
done  on  the  same  principle  as  thai  adopted  bj'  the  commit- 
tee in  the  previous  part  of  the  investigation." 

Mr.  Rendel's  cross-examination  was  resumed  by  Mr.  Ser- 
jeant Wrangham. 

Errors  in  Sections.  Mr.  Rendel,  in  the  course  of  his 
cross-examination,  having  admitted  that  at  the  distance  of 
16i  miles  from  Cambridge  there  was  an  error  of  10  feet  in 
the  level  of  the  surface  of  the  country  with  reference  to  the 
datum  line,  and  that  the  line  could  not  be  carried  into  effect 
unless  he  had  the  power  of  deviating  more  than  five  feet 
from  the  level  so  laid  down  on  the  section  with  reference  to 
the  datum  line, 

Mr.  Serjeant  Wrangham  submitted  that  the  committee 
should  decline  to  proceed  further  with  the  bill,  it  being  clear 
that  this  error  of  ten  feet  having  been  proved  to  exist,  the 
line  could  not,  consistently  with  the  provisions  of  clause  (w?) 
11,  8  Vict.  c.  20,  which  limited  the  deviation  of  the  section 
to  five  feet,  be  constructed. 

marked,  commenced  with  the  engineering  evidence,  whereas  in 
the  case  of  the  London  and  York,  that  branch  of  evidence  was 
not  gone  into  until  the  close  of  the  general  evidence. 

(m)  See  this  statute,  ante,  App.  I.  See  further  for  instances 
where  same  objection  allowed  to  be  gone  into,  post,  App.  III. 
Sect.  VI. 


Proceedings  before  Committees.         ccxxvii 

Mr.  Hildyard  objected  that  this  was  a  standing  order 
point, 

Mr.  Serjeant  Wrangham  replied,  that  it  was  not  a  stand- 
ing order  abjection,  because  the  error  rendered  the  construc- 
tion of  the  Hne  impossible. 

The  committee  resolved,  "  That,  in  the  case  of  the  Cam- 
bridge and  Lincoln  Railway  bill,  the  preamble  of  the  bill 
was  not  proved,  inasmuch  as  it  appeared  in  evidence  that 
the  line  contemplated  under  the  provisions  of  the  bill  referred 
by  the  house  to  the  committee  could  not,  under  those  pro- 
visions and  the  provisions  of  the  8  Vict.  c.  20,  be  carried 
into  effect  according  to  the  plans  and  sections  deposited  in 
the  Private  Bill  Office." 

The  committee  further  resolved,  "  That  it  should  be  open 
to  the  promoters  of  the  Cambridge  and  Lincoln  line,  upon 
the  committee  making  a. report  to  the  house  in  pursuance  of 
the  resolution  to  which  they  had  agreed,  to  submit  the  Cam- 
bridge and  Lincoln  scheme  to  them  in  the  shape  of  a  pro- 
ject," 

On  the  determination  of  the  committee  being  announced, 

Mr.  Hildyard  applied  to  the  committee  to  be  permitted 
to  consult  a  short  time  with  his  clients,  previous  to  stating 
what  course  he  was  now  prepared  to  pursue. 

The  committee  acceded  to  Mr.  Hildyard's  request,  and 
adjourned  for  a  quarter  of  an  hour. 

On  the  re-assembling  of  the  committee, 

Mr.  Hildyard  stated  that  he  was  prepared  to  prosecute 
the  scheme  as  a  project,  and  had  only  to  apply  to  the  com- 
mittee to  adjourn  till  the  next  day,  which  was  accordingly 
done. 

The  counsel  for  the  promoters  of  the  Cambridge  and  I-m- 
coln  then  proceeded  to  call  a  great  variety  of  witnesses  to 
speak  to  the  character  of  their  line  and  its  superiority  over 
the  London  and  York,  in  regard  of  general  merits,  engi- 
neering details,  &c. 

Mr.  Basilo-ate,  superintendent  of  surveys  on  tlie  Cam- 
bridge and  Lincoln  line,  being  called  and  examined  by  Mr. 
Hildyard,  produced  an  amended  section  of  the  levels. 

Mr.  Serjeant  Kinglake,  in  cross-examination,  having  put 
questions  to  tlie  witness  with  relation  to  further  inaccuracies 
in  the  amended  section  produced  in  evidence  before  the 
committee,  Mr.  Hildvard  objected  to  the  course  of  cross- 
examination,  inasmuch  as  it  referred  to  questions  which 
should  have  been  taken  cognizance  of  by  tiie  comnuttce  on 
standing  orders.  i        i    • 

Mr.  Serjeant  Kinglake  stated,  in  reply  to  the  cliairman. 


ccxxviii  Appendix. 

that  it  would  entirely  depend  on  the  errors  which  he  might 
discover  in  the  plans  and  sections  whether  or  not  he  would 
endeavour  to  show  that  the  line  could  not  be  constructed  in 
accordance  with  them. 

The  committee  resolved,  "  That  the  witness  under  exami- 
nation having  been  called  by  Mr.  Hildyard,  Mr.  Seijeant 
Kinglake  should  be  allowed  to  proceed  with  his  cross-ex- 
amination." 

Cross-examination  further  proceeded  with. 

A  witness  called  for  the  promoters  having,  in  the  course 
of  his  examination,  stated  that  the  toll  on  coal  proposed  by 
the  Cambridge  and  Lincoln  would  be  one  penny  per  ton 
per  mile,  and  counsel  proceeding  to  examine  the  witness  as 
to  the  comparative  prices  at  which  the  coal  would  be  obtain- 
able by  the  consumer,  should  the  Cambridge  and  Lincoln 
company  think  proper  to  carry  at  three-fourths  the  toll  spe- 
cified in  the  tables  of  the  London  and  York  company, 

An  objection  was  taken  to  the  proposed  course  of  exa- 
mination. 

The  committee  resolved,  "  That  the  London  and  York 
company  having  been  compelled  to  put  in  their  maximum 
toll  as  a  basis  on  which  they  were  to  give  evidence  of 
traffic,  the  promoters  of  the  Cambridge  and  Lincoln  must 
also  put  in  their  maximum  toll  as  the  basis  on  which  they 
were  to  give  their  direct  evidence.  That  evidence  on  a 
hypothetical  toll  could  not  be  received  as  evidence  for  the 
purpose  of  rebutting  the  direct  evidence  of  the  competing 
line." 

On  the  application  of  Mr.  Serjeant  Wrangham  the  plans 
of  the  Direct  Northern  were  produced,  and  the  sections 
promised  the  next  day  or  the  day  after,  the  counsel  for  that 
line  at  the  same  time  protesting  that  there  was  no  right  to 
demand  them  till  the  case  came  on. 

Mr.  Hildyard  having  stated  that  he  had  now  concluded 
the  evidence  he  proposed  to  tender  on  behalf  of  the  Cam- 
bridge and  Lincoln  line. 

The  committee  proceeded  to  the  consideration  of  the  pe- 
tition of  Mr.  Pemberton. 

On  the  conclusion  of  the  evidence  as  to  the  petition  of 
Mr.  Pemberton,  Mr.  Serjeant  Wrangham  stated  that  he 
now  proposed  to  ofler  evidence  in  opposition  to  the  evidence 
given  on  behalf  of  the  Cambridge  and  Lincoln  line. 

After  some  discussion  as  to  the  extent  to  which  it  Avould 
be  competent  for  him  to  do  this, 

The  committee  resolved,  "  That  the  promoters  of  the 
London  and  York  line  could  only  give  evidence  to  rebut 


Proceedings  before  Committees.         ccxxix 

the  evidence  in  chief  given  by  the  promoters  of  the  Cam- 
bridge and  Lincoln  Une." 

Witnesses  were  then  called  for  this  purpose. 
^  During  the  examination  of  one  of  these,  Mr.  Serjeant 
Kinglake  having  put  to  the  witness  a  question  as  to  the 
population  within  a  certain  area  on  the  line  of  the  London 
and  York  line, 

Mr.  Hildyard  objected  to  the  witness  being  examined  to 
this  point,  ou  the  ground  that  it  could  not  be  considered  as 
evidence  rebutting  any  given  in  support  of  the  Cambridge 
and  Lincoln  line,  the  Cambridge  and  Lincoln  having  in  the 
calculation  made  by  Mr.  Bampton,  who  had  been  called  by 
them  to  speak  to  the  population  on  the  respective  lines,  as- 
sumed the  population  stated  by  Mr.  Serjeant  Wrangham  in 
his  opening  speech. 

Mr.  Serjeant  Kinglake  was  heard  in  reply,  and  con- 
tended that  his  examination  was  quite  in  accordance  with 
the  decision  of  the  committee.  Tlie  London  and  York  had 
not  given  any  evidence  of  population.  The  numbers  as- 
sumed by  Mr.  Bampton  were  merely  a  hypothetical  state- 
ment on  the  part  of  Mr.  Serjeant  Wrangham. 

The  committee  resolved,  "  That  Mr.  Serjeant  Kinglake  be 
directed  to  proceed  with  the  examination  of  the  witness." 

The  examination  was  further  proceeded  with,  and  it  ap- 
pearing that  the  witness  had  not  in  his  calculation  started 
from  the  same  point  as  Mr.  Bampton, 

Mr.  Hildyard  objected  to  a  calculation  which  was  not 
formed  on  the  same  basis  as  that  of  the  Cambridge  and 
Lincoln. 

The  committee  resolved,  "That  the  chairman  be  instructed 
to  inform  the  parties  that  it  was  the  opinion  of  the  com- 
mittee that  in  order  to  draw  a  fair  comparison  it  was  neces- 
sary that  parallels  of  latitude  should  be  drawn  tlu-ough 
specified  points,  and  the  population  calculated  between  those 
lines  so  drawn."  (?i) 

Mr.  Serjeant  Kinglake  having  stated  that  he  proposed  to 
call  evidence  to  show  that  certain  coaclies  had  been  ])ut  on, 
and  should  be  taken  into  calculation,  as  counterbalancing 
those  which  appeared  by  evidence  given  on  the  other  side 
to  have  been  discontinued  subsequent  to  the  period  at  which 
the  number  was  taken  by  the  London  and  York,  as  stated 
in  the  Stamp  Office  return, 

(n)  In  like  manner  the  committee  or.  Group  (K)  suggested 
that  they  should  be  furnished  with  a  table  of  population  within 
three  miles  of  the  competing  lines. 


ccxxx  Ajypendix. 

An  objection  was  taken  by  Mr.  Hildyard  to  the  course 
proposed  by  Mr.  Seijeant  Kinglake,  inasmuch  as  it 
amounted  to  the  production  of  new  traffic  tables. 

The  committee  resolved,  "  That  Mr.  Serjeant  Kinglake 
be  permitted  to  proceed  with  the  evidence  as  proposed." 

Mr.  Hildyavd  then  applied  to  have  the  cross-examination 
of  the  witness  postponed  till  Monday  morning,  and  that  the 
counsel  for  the  London  and  York  be  directed  to  proceed  with 
the  remainder  of  their  evidence,  to  which  the  committee  ac- 
ceded, with  this  addition,  that  both  parties  must  be  confined 
to  the  Stamp  Office  returns  up  to  the  end  of  Maj%  1845. 

The  additional  returns  from  the  Stamp  Office,  as  pre- 
scribed by  the  above  resolution  of  the  committee,  were  put 
in  by  Mr.  Wimberle}',  who  was  cross-examined  by  Mr. 
Hildyard. 

Mr.  Josiah  Parkes  was  then  called  and  examined  by 
Mr.  Hildyard  with  respect  to  the  additional  tables,  and 
cross-examined  by  Mr.  Serjeant  Wrangham. 

Mr.  Serjeant  Wrangham  stated  that  this  was  all  the  evi- 
dence he  proposed  to  tender  in  rebuttal. 

Mr.  Hildyard  then  stated  that  before  proceeding  further 
with  the  case  he  should  submit  to  the  committee  an  objec- 
tion to  the  bill  of  the  London  and  York  company,  which  he 
would  sliow  to  be  fatal  to  its  further  progress.  The  capital 
originally  contemplated  and  subscribed  for  under  the  con- 
tract deed,  as  appeared  by  the  prospectus  and  the  scrip 
of  the  company,  was  5,000,000/.,  while  that  now  proposed 
to  be  authorized  under  the  bill  before  the  committee  was 
6,500.900/.  (o)  He  should  contend,  first,  that  it  was  not 
within  the  power  of  the  committee  to  authorize  this  ad- 
ditional capital ;  secondly,  that  even  if  it  were  so,  such  an 
alteration  would  render  the  contract  deed  null  and  void. 
The  company  could  not,  under  such  circumstances,  enforce 
any  claim  against  the  subscribers,  and  consequently,  even 
were  the  committee  to  grant  the  preamble  of  the  biU,  the 
provisions  under  which  the  work  was  to  be  carried  out 
would  be  inoperative. 

Mr.  Cockburn,  on  the  part  of  the  Direct  Northern,  and 
other  counsel,  wei-e  heard  to  the  same  effect. 


(o)  In  the  case  of  the  Edinburgh  and  Northern  line  an  in- 
crease in  the  capital  of  100,000/.  (thereby  raising  the  amount  of 
such  capital  to  650,000/.)  was  authorized  by  the  committee,  for 
the  purpose  of  constructing  the  line  with  a  double  instead  of  a 
single  line  of  rails. 


Proceedings  before  Committees.         ccxxxi 

Mr.  Serjeant  Wrangham  was  heard  in  reply,  and  con- 
tended, as  a  preliminary  point,  that  the  question  as  put  was 
one  not  withui  the  province  of  the  committee  on  the  bill  to 
decide,  and  further,  that  even  gi-anting  that  it  were  so  the 
view  taken  by  Mr.  Hildyard  of  the  legal  eifect  of  the  course 
proposed  under  the  provisions  of  the  bill  was  erroneous. 

The  committee  resolved,  "  That  the  question  as  put  to  the 
committee  was  one  within  the  province  of  the  committee  to 
decide." 

"  That  it  was  competent  to  the  committee  to  authorize 
the  London  and  York  company  to  raise  the  sum  proposed 
as  their  capital  under  the  provisions  of  the  bill,  three-fourths 
of  that  amount  having  been  subscribed." 

The  parties  being  called  in  and  informed  thereof, 

Mr.  Hildyard  was  then  heard  in  support  of  the  Cam- 
bridge and  Lincoln  case,  and  in  reply  on  the  case  of  the 
London  and  York. 

The  committee  then  proceeded  with  the  consideration  of 
the 


Direct  Northern  Railway  Project. 

The  evidence  was  of  the  same  character  as  that  adduced 
on  behalf  of  the  Cambridge  and  Lincoln. 

Mr.  Giles,  engineer  to  the  company,  being  under  ex- 
amination, and 

Mr.  Cockburn  having  directed  the  witness  to  produce  new 
plans  and  sections  rectifying  the  errors  in  the  original  plan 
and  section,  as  deposited  in  the  Private  Bill  Office,  and  also 
an  additional  plan  and  section  of  the  interval  lying  between 
the  terminus  at  Burton,  as  proposed  under  the  bill.  No. -2, 
and  Lincoln,  and  which  it  was  necessary  should  be  filled  up 
in  order  to  effect  a  junction  with  the  Cambridge  and  Lin- 
coln, as  suggested  by  the  Board  of  Trade, 

Mr.  Serjeant  Wrangham  obJL>cted  to  the  course  proposed 
by  Mr.  Cockburn,  on  the  ground  that  it  was  not  competent 
for  the  Direct  Northern  to  enter  into  the  merits  of  any 
scheme  not  included  in  tlicir  parliamentary  project,  that 
project  being  strictly  defined  and  limited  by  the  plans  and 
sections  deposited  in  the  Private  Bill  Office. 

The  committee  resolved,  "  That  it  was  not  competent  for 
them  to  receive  as  evidence  any  plans  or  sections  relative  to 
a  hne  or  portion  of  a  line  of  wliicli  no  plans  or  sections  had 
been  deposited  in  the  Private  Bill  Office.  Tliat  the  com- 
mittee, under  the  peculiar  circumstances  of  tlie  case,  did 


ccxxxii  Ajipendix. 

not  consider  themselves  called  upon  to  exclude  parol  evi- 
dence of  a  general  nature  as  to  the  facilities  or  desirableness 
of  extending  the  line  from  Burton  to  Lincoln."  (9) 

Sir  John  Rennie,  engineer  to  the  company,  being  called 
and  examined  by  Mr.  Webstei-,  and  cross-examined  by  Mr. 
Serjeant  VVrangham,  was  about  to  be  further  cross-examined 
by  Mr.  Talbot,  who  appeared  for  the  Archbishop  of  York, 
but  as  it  appeared  that  his  grace  had  presented  no  petition 
against  the  Direct  Northern,  it  was  decided  that  the  counsel 
could  not  be  heard. 

The  witness  was  further  cross-examined  by  Mr.  Crowder 
on  behalf  of  the  Don  Navigation  trustees,  who  complained 
that  the  proposed  erection  of  a  bridge  by  the  company 
would  obstruct  the  passage  of  vessels  up  and  down  the  river. 

In  the  course  of  the  proceedings  Mr.  Cockbum  stated, 
that  he  proposed  to  call  evidence  to  show  that  there  was  an 
error  in  the  sections  of  the  London  and  York  at  a  point 
about  ten  miles  from  King's  Cross,  similar  to  that  discovered 
in  the  Cambridge  and  Lincoln  case,  and  which  he  sub- 
mitted must  prove  fatal  to  the  bill. 

Mr.  Serjeant  Wrangham  objected  to  the  reception  of  the 
evidence,  on  the  ground  that  Mr.  Cockburn  had  not  cross- 
examined  Mr.  Cubitt  on  the  point  when  he  was  under 
examination  with  regard  to  the  accuracy  of  the  sections. 

The  committee  resolved,  "  That  the  promoters  of  the 
Direct  Northern  line  were  at  liberty  to  offer  as  rebutting 
evidence  pi'oof  of  errors  in  the  London  and  York  sections  of 
such  an  amount  as  to  render  the  construction  of  the  line  im- 
practicable under  the  provisions  of  the  act  S  Vict.  cap.  20. 
That,  inasmuch  as  the  time  which  the  nature  of  the  inves- 
tigation occupied  was  such  as  to  render  it  necessary  that 
some  rule  should  be  laid  down,  and  as  other  opponents  of 
the  London  and  York  had  stated  their  intention  to  offer 
evidence  of  a  similar  description,  the  committee  required  that 
the  promoters  of  all  such  lines  as  intended  to  give  such 
evidence  should  the  next  morning  hand  in  notices  stating 
the  places  at  which  there  were  such  alleged  errors,  and  the 
extent  of  them. 

"  That  the  committee  would  proceed  to  the  final  con- 
sideration of  such  evidence  as  might  be  tendered  under  and 
consistently  with  the  foregoing  resolutions  immediately  after 
the  termination  of  the  Tottenham  and  Farringdon  Street 
case." 

(g)  See  ante,  p.  ccxx.v. 


Proceedings  before  Committees.         ccxxxiii 

Mr.  Cockbum  was  heard  in  support  of  the  case  of  the 
Direct  NoVthern,  and  in  reply  on  the  case  of  the  London 
and  York.  In  the  course  of  his  address,  Mr.  Phinn  ap- 
plied to  be  allowed  to  call  evidence  on  behalf  of  the  Don 
Navigation  trustees.  The  committee  decided  against  the 
application,  inasmuch  as  he  had  allowed  the  proper  time  for 
making  it  to  go  by.  (s) 

The  following  notices  with  regard  to  the  alleged  errors 
in  the  London  and  York  section  were  put  in  on  behalf  of 
the  Direct  Northern,  and  the  Sheffield  and  Lincolnshire. 

"  To  the  sohcitors  for  the  London  and  York  Railway. 

"  Gentlemen, 
"  The  error  which  we  allege  to  exist  in  the  London  and 
York  section  (Sheffield  branch)  is  as  follows  :— The  level 
of  the  turnpike  road,  No.  12,  parish  of  Whiston,  at  160 
miles  65  chains,  is  incorrectly  stated  on  the  said  section,  in- 
asmuch as  it  is  there  marked  217  feet  above  the  datum 
line,  whereas  it  is  in  fact  235  feet  9  inches  or  thereabouts 
above  the  datum  line,  being  an  error  of  18  feet  9  inches,  or 
thereabouts. 

"  Haywood,  Bramley,  and  GAii\sFORD, 
"  Solicitors  for  the  Sheffield  and  Lincolnshire  Junction 
Railway. 
"  9,  Bridge  Street,  Westminster, 
"  lO^A  Juli/,  1845. 

"  The  promoters  of  the  Direct  Northern  Railway  allege 
that  errors  exist  in  the  levels  of  the  London  and  York  Rail- 
way, as  shown  on  the  deposited  section,  between  a  certain 
road,  called  Hadley  Common  Road,  at  a  distance  of  9 
miles  65  chains,  or  thereabouts,  from  King's  Cross,  and  a 
certain  other  road,  called  Robbery  Wood  Road,  at  a  distance 
of  23  miles  36  chains,  or  thereabouts,  from  King's  Cross, 
(that  is  to  say) ; 

"  That  at  a  certain  road,  called  Greenwood  Place  Road, 
at  a  distance  of  10  miles  29  chains,  or  thereabouts,  from 
King's  Cross,  there  is  an  error  amoimting  in  extent  to  9 
feet,  the  said  road  being  9  feet  too  low  as  referred  to  tlie 
common  datum  line  on  the  section. 

"  That  at  the  said  Robbery  Wood  Road  the  error 
amounts  to  12  feet,  the  said  road  being  12  feet  too  low,  as 
referred  to  the  common  datum  line  on  the  section. 

(s)  See  case  of  Manchester,  Bolton  anl  Bury  Canal  (Com- 
pany, ante,  n.  (a),  p.  ccxviii. 


ccxxxiv  Appendix. 

"  That  between  the  above-mentioned  limits  there  are  se- 
veral public  roads  crossed  by  the  said  London  and  York 
Railway,  at  which  errors  of  a  greater  extent  than  5  feet  oc- 
cur, such  roads  being  more  than  5  feet  too  low,  as  referred 
to  the  common  datum  line  on  the  section. 

"  That  the  above-mentioned  error  at  the  said  Robbery 
Wood  Road  is  continued  forv.ard  to  York. 

"  That  the  said  errors  affect  the  roads  and  navigations  on 
the  projected  London  and  York  Railway  from  the  said  Had- 
ley  Common  Road  forward  to  York  in  such  a  manner  as  to 
render  the  construction  of  the  line  impracticable  under  the 
provisions  of  the  act  8  Vict,  c,  20." 

Mr.  Paget  objected  that  the  notice  of  the  Direct  Northern 
was  not  in  accordance  with  the  spirit  of  the  resolution,  as  it 
did  not  state  the  points  at  which  the  alleged  en-ors  specified 
so  affected  the  works  as  to  render  their  construction  imprac- 
ticable. 

The  committee  resolved,  "  That  it  was  necessary  that  the 
opponents  of  the  London  and  York  line  should  specify  the 
places  at  which  the  errors  affected  the  consti-uction  of  the 
line  under  the  8th  Vict.  c.  20,  as  the  only  means  of  testing 
the  amount  of  en-or  with  reference  to  that  act." 

A  question  arising  as  to  the  eSect  of  the  resolution — 

The  committee  further  resolved,  "  That  the  promoters  of 
the  Direct  Northern  line  were  not  at  Uberty  to  give  evidence 
of  the  occurrence  of  errors  at  other  places  than  Greenwood 
Place  Road  and  Robbery  Wood  Road,  nor  of  the  effect  of 
those  errors  at  places  other  than  those  specified  under  the 
amended  notice  required  by  the  resolutions  of  the  com- 
mittee.' 

]\Ir.  Phinn  then  renewed  his  application  to  be  allowed  to 
call  evidence  in  support  of  the  River  Don  company,  to 
■which  the  committee  acceded.  He  accordingly  proceeded 
to  call  Mr.  Bartholomew,  the  engineer  of  the  company,  who 
"was  examined  by  Mr.  Phinn,  and  cross-examined  by  Mr. 
Webster.  Mr.  Paget,  on  behalf  of  the  London  and  York, 
claimed  a  right  to  cross-examine  the  witness,  which  {t)  was 
not  allowed. 

Mr.  Pajret,  on  behalf  of  the  London  and  York,  then 
proceeded  to  offer  evidence  in  rebuttal  of  the  case  of  the 
Direct  Northern,  the  witnesses  being  examined  by  Mr. 
Paget  and  cross-examined  by  Mr.  Webster. 

(i)  See  ante,  n,  (e),  p.  ccxxii. 


Proceedings  before  Committees.         ccxxxv 

The  committee  then  proceeded  with  the  consideration  of 
the 

Tottenham  and  Furringdon  Street  Extemion  Railway  Bill. 

Mr.  Nias  stated  that  he  appeared  on  his  own  behalf 
against  the  preamble  of  the  bill.  His  petition  was  pre- 
sented subsequent  to  the  28th  of  April,  the  day  on  which 
the  committee  commenced  its  sittings,  but  the  Tottenham 
and  Farringdon  bill  had  not  then  been  read  2°.  He  had 
defeiTed  the  presentation  of  his  petition,  therefore,  till  after 
the  second  reading,  and  it  was  presented  three  clear  days 
previous  to  the  day  appointed  for  the  consideration  of  the 
bill  in  committee,  (w) 

Evidence  was  then  gone  into  on  behalf  of  the  last  men- 
tioned line  of  a  similar  kind  to  that  adduced  on  behalf  of 
the  Cambridge  and  Lincoln  and  Direct  Northern. 

Mr.  Serjeant  Wrangham  applied  to  the  committee  to 
direct  the  counsel  for  the  Direct  Northern  to  state  the 
places  at  which  they  proposed  to  prove  the  effect  of  the  er- 
rors specified  to  be  so  great  as  to  render  the  work  impracti- 
cable. 

The  Chairman  intimated  to  Mr.  Webster  that  it  was  the 
opinion  of  the  committee  that  this  should  be  done  before 
proceeding  further  with  the  case. 

Mr.  Serjeant  Wrangham  stated  that  on  the  part  of  the 
London  and  York  he  had  to  make  a  request  to  the  commit- 
tee that  they  would  come  to  a  decision  on  the  merits  of  that 
scheme  after  the  termination  of  the  Tottenham  and  Far- 
ringdon Street  case. 

Mr.  Austin  and  other  counsel  were  heard  against  Mr. 
Serjeant  Wrangham 's  application. 

The  committee  resolved,  "  That  when  the  cases  of  the 
Direct  Northern  and  the  Farringdon  Street  Extension  lines 
were  closed,  the  committee  would  proceed  to  consider  the 
merits  of  the  two  competing  schemes  before  them  for  effect- 
ing a  second  trunk  railway  communication  between  London 
and  York,  viz. : 

"  That  of  the  London  and  York  Company. 

"  That  which  consisted  of  the  Cambridge  and  Lincoln,  the 
Direct  Northern  and  the  Farringdon  Street  Extension  lines, 
in  conjunction  with  the  Eastern  Counties  Railway  already 
executed  as  far  as  Caml)ri(lgc." 

Mr.  Talbot  applied  to  the  committee  to  know  when  tiic 
rebutting  evidence  against  the  London   and   York    Bill, 

(u)  See  ante,  n.  (a),  p.ccxvii. 


ccxxxvi  Appendix. 

which  he  proposed  to  offer  on  behalf  of  the  Eastern  Counties 
and  the  York  and  North  Midland  Extension,  might  be 
given, 

The  committee  resolved,  "  That  having,  in  the  exercise 
of  the  discretion  vested  in  them  by  the  house,  selected  from 
the  various  schemes  submitted  to  them  the  London  and 
York  line,  and  the  system  made  up  by  the  combination  of 
the  Cambridge  and  Lincoln,  the  Direct  Northern,  and  the 
Tottenham  and  Farringdon  Street  Extension,  with  the  ex- 
isting railway  to  Cambridge,  as  the  only  two  schemes  which 
competed  inter  se,  as  respected  a  direct  trunk  communica- 
tion from  London  to  York,  it  was  not  open  to  the  promoters 
of  any  other  line  to  bring  forward  rebutting  evidence  against 
either  of  such  schemes,  so  far  as  respected  the  thorough 
communication." 

"  That  the  committee  would  take  the  Cambridge  and 
Huntingdon  line  next  in  order.  The  promoters  of  that  and 
other  lines  would  then  have  the  opportunity  of  bringing  for- 
ward positive  and  I'ebutting  evidence  as  well  inter  se  as 
against  such  portions  of  either  of  the  two  schemes  referred 
to  in  their  former  resolution  as  then  remained  undecided 
on,  and  as  they  might  be  then  considered  to  compete  with." 
Mr.  Paget  then  proceeded  to  offer  evidence  in  rebuttal  of 
the  case  of  the  Tottenham  and  Farringdon  Street  Exten- 
sion. 

Mr.  AVebster  for  the  promoters  then  proceeded  to  call 
further  evidence  on  their  behalf,  in  answer  to  the  rebutting 
evidence  that  had  been  produced  by  the  other  side.  Upon 
Mr.  Page,  assistant  to  Mr.  Rendel,  the  engineer  of  the 
Tottenham  &'c.  line,  being  called  for  this  purpose,  Mr. 
Paget  for  the  London  and  York  line  objected  to  any  e%-i- 
dence  not  directed  to  confirm  or  confute  statements  pre- 
viously made,  as  the  case  was  now  closed  on  both  sides. 
The  chairman  gave  it  as  the  opinion  of  the  committee  that 
they  should  hear  evidence  for  their  own  satisfaction,  and 
desired  the  attendance  of  Mr.  Rendel  himself,  to  clear  up 
the  difference  between  his  estimates  and  that  made  by  Mr. 
Gibbs,  the  engineer  called  by  the  London  and  York  in  the 
course  of  their  rebutting  evidence.  Mr.  Nias  then  went 
into  evidence  in  support  of  his  petition.  Mr.  G.  D.  Paine, 
civil  engineer,  was  called  and  examined  by  Mr.  Nias.  His 
evidence  went  to  establish  an  error  in  the  sections  in  re- 
ference to  the  datum  line  greater  than  could  be  remedied 
under  the  provisions  of  the  8  Vict.  c.  20.  In  cross-exami- 
nation, it  appeared  that  the  survey  on  which  the  witness 


Proceedings  before  Committees.         ccxxxvii 

founded  his  assertion  of  error  to  the  extent  of  eight  feet  was 
taken  at  a  point  out  of  the  limits  of  deviation  of  the  line 

Mr.  Webster  argued  that  as  the  levels  were  taken 'in 
reference  to  a  pouit  out  of  the  deposited  plan,  Mr  Nias 
could  not  support  an  objection  which  depended  on  those 
surveys.  The  committee  decided  that  it  was  necessary  for 
Mr.  Nias  to  confine  himself  to  an  error  existing  within  the 
limits  of  deviation,  and  that,  therefore,  Mr.  Webster's  ob- 
jection was  valid  on  that  point. 

Mr  Nias  was  then  heard  in  person  in  support  of  his  ne- 
tition.  ^  ^ 

_  Mr.  Wakeling  stated  that  he  appeared  on  behalf  of  a  pe- 
tition from  the  vestry  of  Clerkenwell,  but  that  he  had  been 
prevented  by  illness  from  entering  an  appearance  earlier. 

The  committee  decided  that  Mr.  Wakeling  might  pro- 
ceed with  his  case,  and  he  accordingly  proceeded  to  address 
the  committee  on  behalf  of  his  clients. 

Mr.  Webster,  before  evidence  was  called  in  support  of 
the  petition,  objected  to  the  locus  standi  of  Mr.  Wakeling, 
because  the  whole  question  was  a  matter  of  clause,  and  the 
company  would  be  quite  willing  to  make  any  compensation 
to  the  parish  for  the  loss  of  rate.  He  contended  that  the 
railroad  would  be  of  enormous  value  to  the  parish,  and 
would  multiply  the  rate  twenty-fold. 

The  committee  having  decided  on  hearing  evidence  in 
support  of  the  petition,  Mr.  Wakeling  thereupon  called  va- 
rious witnesses  to  speak  to  the  loss  of  rate  that  Avould  be 
occasioned  to  the  parish  by  the  construction  of  the  railway 
in  question. 

Mr.  Wakeling  stating  that  he  had  no  further  evidence  to 
offer, 

Mr.  Hildyard  was  heard  to  sum  up  in  support  of  the  bill. 
The  committee  then  proceeded  to  tlic  consideration  of  the 
alleged  errors  in  the  section  of  the  London  and  York  line. 
The  evidence  called  by  the  opponents  of  the  London  and 
York  for  this  purpose  went  no  further  than  to  show  an 
error  of  two  feet  six  inches,  tlie  discrepancy  of  nine  or  more 
feet,  alleged  by  the  counsel  for  the  Cambridge  and  Lincoln 
to  exist  between  the  deposited  sections  and  the  actual  sur- 
face of  the  ground,  and  to  render  the  line  impracticable, 
being  proved  to  be  merely  the  result  of  the  contraction  of 
the  paper  on  which  the  sections  had  been  printed.  The 
committee  upon  this  determined  that  it  was  inexpedient  to 
pursue  the  investigation  with  reference  to  the  sections  any 
further, 

Mr.  Wells  on  the  part  of  tlie  Eastern  Counties  Com- 


ccxxxviii  Ap])end'ix, 

pany  applied  to  the  committee  to  be  permitted  to  offer  evi- 
dence as  to  the  accommodation  afforded  by  the  existing  and 
projected  termini  of  that  line  in  London. 

The  committee  decided  against  the  application. 

Mr.  Wells  applied  for  permission  to  address  the  commit- 
tee on  the  facts  elicited  in  the  cross-examination  of  the 
London  and  York  witnesses. 

The  committee  decided  against  the  application. 

Mr.  Serjeant  Wrangham  was  heard  in  reply  on  the  whole 
case. 

The  committee  proceeded  to  the  consideration  of  the 
preamble  of  the  London  and  York  Railway  bill,  and  de- 
cided that  the  preamble  of  the  London  and  York  biU  was 
proved,  omitting  the  Wakefield  and  Sheffield  branch,  which 
they  thought  it  right  to  postpone,  there  being  other  projects 
which  might  be  considered  as  competing  lines  before  them. 

Mr.  Serjeant  Wrangham  upon  this  applied  to  the  commit- 
tee to  move  the  house  for  a  general  instruction  to  divide  the 
London  and  York  bill,  so  as  to  enable  them  to  proceed 
with  all  the  lines  except  the  Sheffield  cind  Wakefield  branch. 

The  committee  then  proceeded  with  the  consideration  of 
the 

Tottenham  and  Furringdon  Street  Extension  Railway  Bill. 

Question,  "  That  the  preamble  of  the  bill  is  proved,"  put, 
and  passed  in  the  negative. 

The  committee  proceeded  with  the  unopposed  clauses  of 
the  London  and  York  bill. 

It  appearing  that  some  consultation  was  requisite  with 
regard  to  the  other  clauses  of  the  bill,  the  committee  con- 
sented, on  the  application  of  counsel,  and  no  opposition 
being  offered  to  such  a  course,  to  hear  the  case  of  the  Cam- 
bridge and  Huntingdon  bill,  which  was  unopposed. 

At  the  conclusion  of  the  Cambridge  and  Huntingdon 
case,  Mr.  Austin  made  an  application  to  the  committee 
to  proceed  next  to  the  consideration  of  the  case  of  the  York 
and  North  Midland  and  Doncaster  Extension  Railway  bill, 
stating  as  the  ground  on  which  he  made  the  application  that 
there  was  no  oppcsition  to  the  bill, 

Mr.  Serjeant  Wrangham  objected  to  the  application  made 
by  Mr.  Austin,  and  stated  that  he  was  prepared,  on  behalf 
of  the  Wakefield  branch  of  the  London  and  York  scheme, 
to  offer  opposition  to  the  passing  of  the  line  for  which  Mr. 
Austin  appeared,  and  with  which  he  considered  the  Wake- 
field branch  directly  competing. 

Resolved,  "  That  the  committee  propose  to  proceed  now 


Proceedings  before  Committees.        ccxxxix 

with  the  clauses  of  the  London  and  York  bill.  The  com- 
mittee adhere  to  their  opinion  expressed  in  their  former  re- 
solution, that  the  York  and  North  Midland  and  Doncaster 
Extension  is  not  a  competing  hne  with  the  London  and 
York  as  respects  thorough  communication  between  London 
and  York  ;  but  they  have  decided  upon  considering  that  line 
as  well  as  the  Swinton  and  Lincoln,  as  competing  with  the 
Wakefield  branch  of  the  London  and  York." 

The  committee  proceeded  with  the  clauses  of  the  bill. 

On  clause  6  being  read,  Mr.  Austin  stated  on  behalf  of 
the  Midland  schemes  that  he  had  some  opposition  to  offer 
to  the  entire  clauses  of  the  bill. 

The  committee  decided  that  it  was  not  competent  to  the 
Midland,  or  to  lines  competing  with  the  London  and  York 
to  be  heard  against  the  clauses  of  the  bill. 

The  instruction  of  the  house  of  the  24th  July,  "  That  the 
committee  have  power  to  divide  the  London  and  York  rail- 
way bill  into  two  or  more  bills,  in  order  that  they  may  re- 
port, from  time  to  time,  on  so  much  of  the  said  bill  as  they 
may  determine  upon,  and  proceed  separately  with  the  con- 
sideration of  the  remainder  thereof,"  being  read. 

The  committee  resolved,  "  That  so  much  of  the  reso- 
lution of  the  committee  as  related  to  the  amendment  of  the 
preamble  of  the  London  and  York  bill,  by  the  omission  of 
the  words  '  Wakefield  and  Sheffield,'  and  the  passing  of  the 
preamble  as  amended,  be  rescinded." 

The  committee  further  resolved,  "  That  the  chairman  be 
instructed  to  inform  the  parties  that  the  committee,  having 
received  from  the  house  an  instruction  empowering  them  to 
divide  the  London  and  York  bill  into  two  or  more  bills,  in 
order  that  they  may  report  from  time  to  time  on  so  much 
of  the  said  bill  as  they  may  determine  upon,  and  proceed 
separately  with  the  remainder  thereof,  and  having  found  it 
necessary  to  rescind  so  much  of  their  proceedings  as  relate 
to  the  amendment  of  the  preamble  of  tlic  London  and  York 
by  the  omission  of  the  words  '  Wakefield  and  Sheffield,' 
and  the  passing  of  the  preamble,  as  amended,  in  order  to 
place  themselves  in  a  position  to  carry  that  instruction  into 
effect,  the  connnittee  require  that  tlie  parties  will  take  im- 
mediate steps  to  carry  tlie  objects  contemplated  by  tlie  in- 
struction into  effect." 

The  resolutions  of  the  previous  day,  with  respect  to  the 
clauses  of  the  bill,  were  reconsidered  and  rescinded. 

The  committee  adjourned  for  a  short  time,  in  order  to 
enable  the  parties  to  divide  the  bill  in  accordance  witli  the 
resolution  of  the  committee. 


ccxl  /Ippendix. 

On  the  committee  again  meeting. 

Mr,  Paget,  on  behalf  of  the  London  and  I'ork  company, 
submitted  the  first  bill,  with  which  they  proposed  to  pro- 
ceed, for  the  formation  of  a  railway  from  London  to  York, 
excluding  the  Wakefield  and  Sheffield  branches. 
The  preamble  was  read  and  agreed  to. 
The  committee  proceeded  with  the  clauses  of  the  bill. 
On  clause  16  being  read, 

Mr.  Wilde,  on  behalf  of  St.  Bartholomew's  Hospital,  ob- 
jected to  the  provisions  of  the  clause,  on  the  ground  that 
the  company  had  scheduled  considerably  more  land  belong- 
ing to  the  hospital  than  could  possibly  be  requisite  for  the 
pui-poses  of  the  railway. 

Mr.  Paget  was  heard;  and  Mr.  Cubitt,  the  company's 
engineer,  was  called  and  examined  b\'  the  committee. 

The  committee  resolved,  "  That  the  parties  be  insti-ucted 
to  prepare  a  clause  giving  the  hospital  a  right  of  pre-emption 
with  respect  to  any  land  not  wanted,  and  providing  that  the 
company  should,  within  three  years,  specify  the  exact 
quantity  of  land  requisite." 

A  clause  was  brought  up  accordingly,  read,  and  agreed 
to. 

The  clauses  were  further  proceeded  with. 

A  clause  was  proposed  by  Mr.  Whateley,  on  behalf  of 
the  Earl  of  Lindsey,  providing  that  the  company  should  not 
be  empowered  to  take  any  of  the  lands  of  Earl  Lindsey 
without  his  consent  in  writing. 

Witnesses  were  examined  on  behalf  of  Earl  Lindsej'. 

Mr.  Paget  was  heard. 

The  clause  was  put  and  negatived. 

The  committee  went  through  the  remaining  clauses  of 
the  bill. 

Several  manuscript  clauses  were  brought  up,  read,  and 
added  to  the  bill. 

Mr.  Austin  stated  that  he  appeared  with  Mr.  Talbot  on 
behalf  of  the  inhabitants  of  Hornsey,  and  should  oppose 
some  clauses  of  the  bill. 

Mr.  Hildyard  was  heard  on  behalf  of  the  Gainsborough 
Bridge  trustees. 

Several  manuscript  clauses  were  brought  up,  read,  and 
added  to  the  bill. 

On  the  clauses  relating  to  the  Fossdyke  Navigation  being 
brought  up  and  read, 

A  member  of  the  committee  objected  to  the  clauses,  and 
stated  that  he  considered  it  injurious  to  the  interests  of  the 


Proceedings  before  Committees.  ccxli 

public  to  empower  the  company  to  lease  the  navigation,  but 
the  committee  decided  on  retaining  them. 

And  the  same  with  regard  to  a  series  of  clauses  relating 
to  the  Witham  Navigation. 

The  clauses  were  further  proceeded  with. 

Additional  manuscript  clauses  relating  to  the  Witham 
Navigation  were  read  and  added  to  the  bill. 

On  a  clause  being  brought  up  restricting  the  company 
from  taking  on  the  railway  more  than  two-thirds  of  the  tells 
authorized  under  their  Act,  until  they  should  have  applied 
to  Parliament  for  authority  to  reduce  to  two-thirds  the  tolls 
usually  taken  on  the  Witham  Navigation, 

A  member  of  the  committee  stated  that  he  objected  to 
this  clause^  but  the  committee  decided  on  retaining  it. 

Parties  called  in  and  manifecript  clauses  further  pro- 
ceeded with. 

The  committee  proceeded  to  the  consideration  of  their 
report  on  the  matters  required  by  the  standing  orders  to  be 
examined  into  by  railway  committees,  and  ultimately  it  was 
ordered  that  the  bill  as  amended  be  referred  to  the  house. 


SELECT    COMMITTEE    ON    GROUP   (A)    OF 
RAILWAYS. 

COMPRISING, 

1.  Central  Kent  Project. 

2.  London,  Chatham,  and  North  Kent. 

3.  London  and  Croydon  (Chatham  to  Chilham). 

4.  London  and  Croydon  (Chatham  to  Gravesend). 

5.  London  and  Croydon  Enlargement. 

6.  London  and  Croydon  (Orpington  Branch). 

7.  London  and  Croydon  (Maidstone,  Ashford,  and  Tun- 

bridge). 

8.  South  Eastern  (Ashford  to  Hastings). 

9.  South  Eastern  (Branch  to  Deal  and  Extension  of  tiic 

South  Eastern,  Canterbury,  Ramsgate,  and  Margate 
Railway). 

10.  South  Eastern  (Hungerford  Bridge  to  Chilham,  witli 

Branches)  Project.  ,„     ,    .  ,  i  r.  1 1    i 

11.  South  Eastern  (Lewisham  to  funbridge  and  Paddock 

Wood)  Project. 


ccxlii  Ajypendix. 

12.  South  Eastern  (Maidstone  to  Rochester). 

13.  South  Eastern  (Tunbridge  to  Tunbridge  Wells). 

14.  South  Eastern  (Widening  and  Extension  of  the  Lon- 

don and  Greenwich)  Railway. 

15.  South  Eastern  (Headcorn  and  Rye)  Project. 

16.  Brighton,  Lewes,  and  Hastings  (Keymer  Branch). 

17.  Brighton,   Lewes,   and   Hastings  (Hastings,  Rye,  and 

Ashford  Extension). 

18.  Rye  and  Tenterden. 

19.  Kentish  Coast. 

20.  Gravesend  and  Rochester. 

21.  London  and  Greenwich. 

Upon  the  first  meeting  of  the  committee,  a  question 
arose  as  to  the  order  of  precedence  in  which  the  nume- 
rous bills  and  projects  referred  to  them  should  be  taken; 
counsel  could  not  agree  upon  the  point,  and  the  chairman 
stated  that  if  the  counsel  could  not  agree,  the  committee 
would  exercise  its  discretion,  and  not  necessarily  proceed 
with  them  according  to  the  priority  of  their  second  reading. 
The  committee  finally  decided  to  take  first  the  bills  16  and 
21,  being  unopposed  bills,  and  then  to  proceed  with  the 
bills  Nos.  2,  3,  4  and  6,  and  the  project  No.  10  together,  as 
the  lines  competing  for  the  accommodation  of  North  Kent. 
The  North  Kent  (No.  1)  to  begin,  (according  to  its  priority 
of  second  reading),  to  be  followed  by  the  South  Eastern 
Company's  project  (No.  10),  and  then  by  the  Croydon 
Company's  bills  (Nos.  3,  4  and  6). 

The  following  was  the  course  of  proceeding  adopted : — 
counsel  for  No.  2  opened  the  case  and  called  witnesses,  who 
were  cross-examined  by  counsel  for  the  two  other  com- 
panies, and  for  opposing  landowners.  Then  counsel  were 
heai'd  and  witnesses  examined  against  No.  2  for  opposing 
landowners ;  then  the  South  Eastern  Company's  case  was 
gone  through  in  like  manner,  but  without  an  opening 
speech ;  then  the  case  of  the  Croydon  Company  (atmosphe- 
ric lines).  At  the  close  of  all  the  evidence,  Mr.  Cockburn 
was  heard  in  support  of  the  South  Eastern  project  (No.  10) 
against  the  other  competing  lines ;  next  Mr.  Austin  was 
heard  in  like  manner  on  behalf  of  the  Croydon  Company's 
lines,  and  finally  Serjt.  Wrangham  replied  for  No.  2. 

At  the  close  of  the  case  for  the  London,  C/iulhani,  and 
North  Kent  Bill,  which,  as  we  have  seen,  was  the  first  of 
the  competing  lines  with  which  the  committee  proceeded, 
the  counsel  for  the  South  Eastern  competing  line  objected 
that  there  had  been  a  change  from  the  original  plans  and 
estimates  of  the  former  line,  by  the  omission  of  branches. 


Proceedings  before  Committees.         ccxliii 

and  tlie  substitution  of  tunnels  for  cuttings;  it  was,  however, 
held  to  be  no  ground  for  stopping  the  case. 

The  committee  declined  to  compel  the  attendance  of 
General  Pasley  as  a  witness,  he  being  a  public  officer,  and 
the  Board  of  Trade  objecting. 

The  committee  refused  to  entertain  the  opposition  of  the 
inhabitants  of  Faversham  as  such,  (n) 

Mr.  Bidder,  the  engineer  of  the  South  Easter?!,  whose 
examination  commenced  that  Company's  engineering  evi- 
dence, having  been  examined  as  to  the  comparative  merits  of 
the  North  Kent  and  South  Eastern  schemes,  aquestion  arose 
as  to  when  his  examination  with  reference  to  the  Croydon, 
(atmospheric),  the  other  competing  line,  should  be  proceed- 
ed with.  The  committee  having  decided  that  such  evidence 
should  be  then  given,  Mr.  Bidder  went  on  to  state  that  he 
had  objections  to  the  atmospheric  system,  founded  on  the 
laws  of  nature,  which  would  limit  the  powers  of  the  atmos- 
pheric system.  Mr.  Austin,  Q.  C,  for  the  Croydon  line, 
objected  to  any  question  being  put  to  the  witness  relative  to 
the  applicability  of  the  atmospheric  mode  of  traction.  The 
committee,  however,  abided  by  their  prior  resolution  as  to 
proceeding  with  the  evidence  in  question,  and  accordingly 
Mr.  Bidder  was  recalled  and  examhied  at  great  length  as  to 
the  merits  and  demerits  of  the  atmospheric  plan. 

A  motion  was  made  at  this  stage  of  the  proceedings  by  a 
member  of  the  committee,  that,  "  inasmuch  as  the  committee 
have  now  before  them  three  competing  lines  of  railway,  and  on 
one  of  those  it  is  proposed  to  estabHsh  the  atmospheric  prin- 
ciple of  working,  the  committee  do  not  feel  themselves  com- 
petent in  the  present  state  of  information  on  that  subject, 
and  the  absence  of  any  fixed  data  upon  which  to  decide  the 
relative  merits  of  the  atmospheric  and  locomotive  principles, 
to  decide  a  question  such  as  this,  upon  which  scientific  men 
are  so  divided  in  opinion  ;  be  it  therefore  resolved,  that, 
adopting  the  precedent  of  the  South  Devon  and  Tavistock 
Railway  Company,  and  likewise  following  the  advice  given 
by  the  select  committee  on  atmospheric  railways,  viz.  '  to 
suspend  all  railwav  legislation  until  the  result  of  the  Devon 
and  Cornwall,  and  of  the  Epsom  and  Croydon  atmosplieric 
lines  are  known,'  the  committee  do  postpone  the  further 
consideration  of  the  bill  and  projects  before  them  to  Tues- 
day, the  8th  July,  when  the  said  bills  and  projects  may  be 
included  in  the  general  measure  for  deferrmg  bills  until  the 

(n)  But  see  post,  App.  III.,  sect.  vi. 
L  L  2 


ccxliv  Appendix. 

next  session,  by  which  period  it  is  probable  the  before-men- 
tioned schemes  will  be  carried  out." 

The  motion  was,  however,  negatived  by  the  committee. 

At  the  close  of  the  engineering  evidence  of  the  South 
Eastern  line,  Mr.  Cockburn,  Q.  C.,  for  that  line,  took  an 
objection  to  the  North  Kent  line,  that  the  consent  of  the 
Ordnance  to  their  crossing  Woolwich  common  was  given 
only  on  the  condition  of  their  doing  so  by  means  of  a  tun- 
nel below  the  surface;  and  that,  according  to  their  de- 
posited plans  and  sections,  they  could  not  execute  this  tun- 
nel without  exceeding  the  limits  of  deviation  allowed  by 
parliament.  The  committee  decided  not  to  stop  the  case 
on  that  ground. (o) 

In  the  cross-examination  of  the  engineer  of  the  London 
and  Croydon  line,  it  came  out  that  his  plan  involved  the 
crossing  the  Medway  at  a  point  where  it  was  navigable,  and 
carrying  a  tunnel  under  Fort  Pitt  at  Chatham.  It  was  ob- 
jected by  the  counsel  for  the  North  Kent  line,  that  the  pro- 
moters of  the  London  and  Croydon  were  bound  to  show  the 
assent  of  the  Admiralty  to  the  proposed  method  of  crossing 
the  Medway,  and  of  the  Board  of  Ordnance  to  the  tunnel 
imder  Fort  Pitt,  in  order  to  entitle  themselves  to  be  heard 
further  before  the  committee.  It  was  decided,  that  before 
the  pi'omoters  went  further,  they  were  bound  to  produce  the 
necessary  consents,  but  they  might  have  till  the  next  day 
to  produce  them,  their  case  being  suffered  to  proceed  in  the 
meantime. 

The  authenticity  of  the  consent  of  the  Board  of  Ordnance 
to  the  North  Kent  line  being  impugned,  and  a  private 
letter  from  the  solicitor  to  the  Board  being  tendered  in  evi- 
dence for  this  purpose,  grounding  a  charge  of  corruption 
against  the  solicitor,  the  committee  refused  to  receive  such 
letter  in  evidence,  as  involving  matter  not  witliin  their 
jurisdiction,  but  called  on  the  counsel  for  the  North  Kent 
line,  by  whom  such  consent  had  been  offered  in  evidence, 
to  prove  its  authenticity. 

The  bill  for  a  railway  from  Tunbridge  to  Tunbridge 
Wells,  promoted  by  the  South  Eastern  Companj',  being  be- 
fore the  committee,  and  the  preamble  being  declared  to  be 
proved,  the  Medway  Navigation  Company  applied  to  have 
a  clause  inserted  in  the  bill  for  their  protection,  on  the  ground 
that  the  main  line  of  the  promoters  touched  their  navigation, 
and  therefore  as  they  had  a  locus  standi  against  the  main 
line,  they  consequently  had  a  right  to  be  heard  against  the 

(o)  See  ante,  App.  p.  ccxxvi. 


Proceedings  before  Committee.  ccxlv 

branch.  It  was,  however,  decided,  that  they  had  no  locus 
standi  before  the  committee. 

The  Ash  ford  and  Hastings  Branch  of  the  South  Eastern 
being  before  the  committee,  an  objection  was  made  in  li- 
mine to  their  being  heard,  on  the  ground  of  the  positive 
refusal  of  the  Board  of  Admiralty  to  sanction  the  passage  of 
the  harbour  at  Rye  by  a  bridge  ( which  formed  part  of  their 
scheme)  for  fear  of  the  navigation  being  obstructed ;  the 
committee  refused  to  stop  the  proceedings  on  the  bill  at  that 
stage,  but  declared  that  they  would  themselves  communicate 
with  the  Admiralty  on  the  subject. 

The  South  Eastern  Company  having  abandoned  their 
bill  for  a  line  from  Ashford  to  Hastings  was  held  to 
have  no  locus  standi  against  the  Tenterden  and  Rye  line, 
then  before  the  committee,  on  a  question  affecting  only  the 
project  so  abandoned. 

South    Eastern  {Deal  Extension,  Ifc,   Canterbury,  Rams- 
gate,  and  Margate)  Railwai/  Bill. 

Mr.  Austin  was  heard  to  apply  that  this  bill  should  be 
taken  next  into  consideration. 

Mr.  Hill  stated  he  should  be  prepared  to  oppose  the  bill 
on  behalf  of  landowners  and  the  Kentish  coast  project. 

The  committee  determined  that  this  bill  should  be  pro- 
ceeded with  the  next  day  at  eleven  o'clock. 

It  was  ruled  that  a  counsel  for  opposing  landowners,  who 
had  not  questioned  witnesses  called  to  speak  to  the  traffic 
tables,  might  yet  comment  generallt/  on  the  traffic. 

The  committee  decided  in  the  case  of  the  North  Kent 
line,  whose  preamble  had  been  negatived,  tbat  after  this, 
they  could  no  longer  be  supposed  to  exist,  and  consequently 
could  have  no  locus  standi  against  the  Minster  and  Deal 
branch  of  the  South  Eastern,  which  was  then  before  the 
committee. 

The  corporation  of  Sandwich  was  not  admitted  to  oppose 
the  bill  for  tiie  last  mentioned  line,  on  the  ground  that  the 
mode  proposed  by  the  company  of  crossing  the  river  Stour 
would  interfere  with  their  interest  in  a  ferry,  the  point  of 
crossing  being  three  miles  off,  and  other  ferries  inter- 
vening, (p) 

Counsel,  who  appeared  on  behalf  of  a  project  which  had 
ceased  to  exist  (Kent  coast),  were  not  allowed  to  cross-ex- 

(p)  But  in  the  House  of  Lords,  the  corporation  of  Sandwich 
renewed  their  application  to  be  heard,  and  succeeded. 


ccxlvi  /Appendix. 

amine  witnesses  called  by  the  projectors  of  the  above  line 
then  before  the  committee  as  to  the  possibility  of  a  better 
line  being  adopted. 

London  and  Croydon  ( Maidstone,  Ashford,  and  Tunbridge) 
Hallway  Bill. 

Mr.  Talbot  applied  to  be  heard  in  support  of  the  preamble 
of  the  bill,  and,  in  the  event  of  the  bill  being  now  postponed, 
made  application  that  the  committee  should  make  such  re- 
commendation to  the  House  in  their  report  as  would  entitle 
the  promoters  of  the  bill  to  such  advantages  as  may  be  given 
to  postponed  railway  bills  in  another  session. 

South  Eastern  {Maidstone  to  Rochester)  Railway  Bill. 

Mr.  Alexander  made  a  similar  application  on  behalf  of  the 
promoters  of  this  bill. 

Room  cleared. 

Committee  deliberated. 

Resolved,  "  That  in  the  case  of  the  London  and  Croydon 
(Maidstone,  Ashford,  and  Tunbridge)  Railway  Bill  the 
committee  had  determined  that  they  would  not  proceed 
with  the  bill,  inasmuch  as,  besides  the  late  period  of  the 
session,  which  would  preclude  the  possibility  of  arriving  at 
any  result,  the  line  proposed  is  an  atmospheric  line  ;  and 
the  committee  are  of  opinion  it  would  be  advisable  to  post- 
pone the  consideration  of  the  bill  till  the  next  session,  when 
experience  will  have  proved  whether  the  atmospheric  prin- 
ciple of  propulsion  is  capable  of  being  advantageously  ap- 
plied. That  in  the  case  of  the  South  Eastern  (Maidstone 
to  Rochester)  Railway  Bill,  the  committee  had  also  deter- 
mined not  to  proceed  with  the  bill,  as  forming  an  important 
part  of  the  North  Kent  scheme  of  railway  communication, 
the  consideration  of  which  it  is  advisable  to  postpone  till 
next  session. 

"  With  regard  to  both  these  bills,  with  which  the  parties 
were  ready  to  proceed,  but  which  the  committee  for  the 
reasons  stated  declined  to  entertain,  the  committee  recom- 
mend that  they  should  be  placed  in  a  favourable  position 
next  session,  in  consideration  of  the  expense  which  the  par- 
ties have  incurred  in  advancing  the  bills  to  their  present 
stages,  without  having  had  an  opportunity  of  being  heard." 

Parties  called  in  and  informed  thereof. 

Ordered,  to  report. 


(     ccxlvii    ) 


APPENDIX  III. 


PARLIAMENTARY  PRACTICE. 


I.  Preliminahy  Proceedings. 

1.  Notices. 

2.  Plans,  Sections,  &c. 

3.  Application  to  Owners,  &c. 

4.  Estimate  and  Subscription  Contract. 

5.  Deposit. 

6.  Proceedings  preliminary,  &c.  to  Introduction  of  Bill  into 

House  of  Lords. 

II.  Provisions  to  be  inserted  in  Railway  Bills. 

1.  Under  Standing  Orders  of  House  of  Commons. 

2.  Under  Standing  Orders  of  House  of  Lords. 

III.  Proceedings  in  the  House  of  Commons. 

1.  General  course  of  business  relating  to  Private  Bills. 

2.  Petition. 

3.  Committee  on  Petition. 

4.  Committee  on  Standing  Orders. 

5.  Presentation  of  Bill. 

6.  First  Reading. 

7.  Second  Reading. 

8.  Committee  of  Selection. 

9.  Resolutions  of  Session  of  1845. 

10.  Classification  Committee. 

11.  Committee  on  Bill. 

(1.)  Constitution  of  Committee. 

(2.)  Time  of  meeting. 

(3.)  Preliminaries  to  First  Meeting. 

(4.)  Powers,  Functions,  &c.  of  Committee. 

(5.)  General  course  of  Proceedings. 

(1st.)  On  unopposed  Hill. 

(2ndly,)  On  opposed  Bill. 

(3rdly.)  On  Group  of  competing  Bills. 


ccxlviii  Appendix. 

12.  Report. 

13.  Consideration  of  Report. 

14.  Third  Reading. 

IV.  Proceedings  in  the  House  op  Lords. 

1.  General  Course  of  Business. 

2.  Introduction  of  Bill,  ficc. 

3.  Committee  on  Standing  Orders. 

4.  Second  Reading  and  Commitment 

5.  Committee  on  Bill. 

6.  Report. 

7.  Consideration  of  Report. 

8.  Third  Reading. 

9.  Proceedings  in  Commons  in  regard  of  Lords' Amend- 

ments. 

V.  Evidence  in  Support  of  Railway  Project. 

1.  Evidence  of  compliance  with  Standing  Orders. 

(1.)  Before  Sub-Committee  on  Petition  in  Commons. 
(2.)  Before  Standing  Orders  Committee  in  Lords. 

2.  Evidence  before  Committee  on  Bill. 

VI.  Of  the  Opposition  to   a  Railway  Bill,  and  the  Evi- 

dence addccible  in  Support  thereof. 

1.  Of  the  Locus  Standi. 

(1.)  As  regards  Interest. 

(1st.)  Competing  Lines. 

(2ndly.  Landowners,  &c. 
(2.)  As  regards  the  Petition. 

(1st.)  Time  of  Presentation. 

(2ndly.)  Requisites,  &c. 

2.  Of  the  Grounds  of  Opposition  and  Evidence  adducible 

in  support  thereof. 

VII.  Proceedings  relating  to  Bills  re-introduced  into 

Parliament  during  the  present  Session. 

1.  Orders  of  House  of  Commons. 

2.  Resolutions  of  Lords. 

VIII.  Of  the  Costs. 

1.  Of  the  Taxation  of  Costs. 

2.  Of  the  Mode  of  recovering  them. 

IX.  Resolutions,  &c.  of  the  present  Session   relative  to 

Railway  Bills. 

1.  Resolutions,  6iC.  of  Commons. 

2.  Resolutions,  &c.  of  Lords. 

X.  Suggestions  drawn  up  by  the  Chairmen  for  the  Con- 

sideration OF  the  Select  Committee  on    Railway 
Groups,  Session  1846. 


Parliamentary  Practice.  ccxlix 


Section  I. 

PRELIMINARY  PROCEEDINGS  IN  CASE  OF  BILLS 
FOR  MAKING,  MAINTAINING,  VARYING  EX- 
TENDING OR  ENLARGING  ANY  RAILWAY. 

1.  Notices. 

2.  Plans,  Sections  and  Book  of  Reference. 

3.  Owners,  Lessees  and  Occupiers. 

4.  Estimate  and  Subscription  Contract. 

5.  Deposits. 

6.  Proceedings   previous   to  Introduction   of    Bill   into 

House  of  Lords. 


H.  C.  means  order  of  House  of  Commons  ;  H.  L.  means  order  of 
House  of  Lords.  The  words  in  italics  in  the  body  of  the  order 
are  not  in  the  order  of  the  House  of  Lords ;  or  else  denote 
the  changes  introduced  into  the  Standing  Orders  during  the  last 
Session. 


1.  Notices,  (a) 

Notices  of  Application. 

That  notices  be  given  in  all  cases  where  application  is  in- 
tended to  be  made  for  leave  to  bring  in  a  bill  for  making, 
maintaining,  varying,  extending  or  enlarging  any  railway. 
— H.  C.  14;  H.  L.  220,  s.  1. 

Notices  to  contain  the  Names  of  Parishes,  Townships,  Townlands 
and  Extra-parochial  Places,  and  to  state  the  Time  and  Place 
of  Deposit  of  Plans,  &;c. 

That  in  cases  of  such  bills,  all  notices  shall  (6)  contain 

(a)  After  giving  the  notices,  the  promoters  of  a  project 
should  be  cautious  how  they  abandon  any  part  of  the  project  for 
which  their  notices  have  been  given  before  coming  into  parlia- 
ment, since  should  the  part  thus  abandoned  be  deemed  an  essen- 
tial portion  of  their  scheme,  it  may  have  the  effect  of  throwing 
them  over  on  the  standing  orders.  ('Direct  Northern.  Session, 
1845.) 

(6)  In  a  case  (South-Eastern  Railway)  before  sub-committee 
L  L  5 


ccl  Apfendix. 

the  names  of  the  parishes,  townships,  townlands  and  extra- 
parochial  places  from,  in,  through,  or  into  which  the  work 
is  intended  to  be  made,  maintained,  varied,  extended  or  en- 
larged, and  shall  state  the  time  and  place  of  deposit  of  the 
plans,  sections  and  books  of  reference  respectively,  with  the 
clerks  of  the  peace,  parish  clerks,  schoolmasters,  town  clerks 
and  clerks  of  unions,  as  the  case  may  be. — H.  C.  22  ;  H.  L. 
223,  s.  1. 

Intention  to  levy  or  alter  Tolls  to  be  stated.    ■ 

That  if  it  be  the  intention  of  the  parties  applying  for  leave 
to  bring  in  a  bill  to  obtain  powers  for  the  compuhori/  pur- 
chase of  lands  or  houses,  or  to  levy  any  tolls,  rates  or  duties, 
or  to  alter  any  existing  tolls,  rates  or  duties,  or  to  confer, 
vary  or  extinguish  any  exemptions  from  payment  of  tolls, 
rates  or  duties,  or  any  other  rights  or  privileges,  the  notices 
shall  specify  such  intention. —  H.  C.  16  ;  H.  L.  220,  s.  3. 

Notices  to  be  published. 

That  such  notices  be  published  in  three  successive  weeks 
in  the  months  of  October  and  November,  or  either  of  them, 
immediately  preceding  the  session  of  parliament  in  which 
application  for  the  bill  shall  be  made,  in  the  London,  Edin- 
burgh or  Dublin  Gazette,  as  the  case  may  be,  and  in  some 
one  and  the  same  newspaper  of  the  county  in  which  the 
city,  town  or  lands  to  which  such  bill  relates  shall  be  situate; 
or  if  there  be  no  newspaper  published  therein,  then  in  the 
newspaper  of  some  county  adjoining  or  near  thereto;  or  if 
such  bill  do  not  relate  to  any  particular  city,  town  or  lands, 
in  the  London,  Edinburgh  or  Dublin  Gazette  only,  as  the 
case  may  be ;  and  that  all  notices  required  to  be  inserted  in 
the  London,  Edinburgh  or  Dublin  Gazette,  be  delivered  at 

No.  2,  last  session,  where  application  was  made  by  the  pro- 
moters of  the  above  railway  for  one  bill,  embracing  divers  pro- 
jects for  distinct  lines  of  railway,  through  the  several  counties  of 
Kent,  Sussex  and  Surrey,  it  appeared  that  the  notices  inserted  in 
the  papers  published  in  each  of  the  said  counties  only  contained 
the  names  of  those  parishes,  &c.  to  which  the  particular  project 
affecting  the  individual  county  related,  and  that  in  point  of  fact, 
although  there  was  but  one  bill,  each  of  the  projects  there  em- 
braced was  treated  as  a  separate  project  in  respect  of  notice,  the 
committee  were  of  opinion  tliat  the  notices  were  not  good,  and 
that  the  promoters  had  not  complied  with  the  standing  orders, 
(Ridd.  Pari.  Pract.  31.) 


Parliamentary  Practice.  ccli 

the  office  of  the  gazette  in  which  the  insertion  is  required  to 
be  made,  during  the  usual  office  hours,  at  least  tivo  clear  days 
previous  to  the  publication  of  the  gazette,  and  that  the  receipt 
of  the  printer  for  such  notice  shall  be  proof'  of  its  due  delivery. 
— H.  C.  15  ;  H.  L.  220,  s.  2. 

Notices  to  be  affiled  on  Doors  uf  Sessions  House  at  the  Session  pre- 
ceding the  Meeting  of  Parliament.  In  Scotland,  on  Doors 
of  Parish  Churches  in  October  and  November. 

That  notices  shall  also  be  given  at  the  general  quarter 
session  of  the  peace  which  shall  have  been  holden  for  every 
and  each  county,  riding  or  division  in  or  through  which  the 
work  shall  be  made,  maintained,  varied,  extended  or  en- 
larged, at  Michaelmas  or  Epiphany  preceding  the  session  of 
parliament  in  which  such  application  is  intended  to  be  made, 
by  affixing  such  notice  on  the  door  of  the  session  house  of 
each  and  every  such  county,  riding  or  division  where  such 
genera]  quarter  session  shall  be  holden ;  save  and  except  as 
to  any  bill  for  such  purposes  in  Scotland ;  in  which  case, 
instead  of  affixing  such  notices  on  the  door  of  the  session 
house,  such  notices  shall  be  written  or  printed  on  paper,  and 
affixed  to  the  church  door  of  the  parish  or  parishes  in  or 
through  which  such  work  is  intended  to  be  made,  maintained, 
varied,  extended  or  enlarged,  for  two  Sundays  in  each  of 
the  months  of  October  and  November  immediately  preceding 
the  introduction  into  parliament  of  the  bill  for  which  such 
application  is  intended  to  be  made. — H.  L.  223,  s.  2. 

2.  Plan,  Section  and  Book  of  Reference. 

Duplicate  Plans  and  Sections,  (c)  with  Book  of  Reference,  to  be 
deposited  with  Clerks  of  the  Peace,  &;c. 

That  a  plan,  and  also  a  duplicate  of  such  plan,  on  a  scale 
of  not  less  than  four  inches  to  a  mile,  be  deposited  for  public 
inspection  at  the  office  {d)  of  the  clerk  of  the  peace  for  every 
county,  riding  or  division,  in  England  or  Ireland,  or  in 
the  office  of  the  principal  sheriff  clerk  of  every  county  in 
Scotland,  in  or  through  which  the  work  is  proposed  to  be 

(c)  See  note,  post,  p.  cclv. 

(d)  The  office  of  the  clerk  of  tlie  peace  for  Gloucestersliire  is 
situated  at  Gloucester,  the  plans  were  deposited  at  an  office  at 
Dursley,  in  the  same  county,  where  the  clerk  of  the  peace  resided, 
but  no  deposit  was  made  at  the  office  at  Gloucester,  which  ap- 
peared to  be  the  public  office  of  the  clerk  of  the  peace  :  held, 
not  a  compliance  with  the  standing  orders.  Bristol  and  Glou- 
cester Railway  Session,  1837.     Luml.  Pari.  Pr.  p.  10. 


cclii  Appendix. 

made,  maintained,  varied,  extended  or  enlarged,  on  or  before 
the  30th  day  of  November,  immediately  preceding  the  ses- 
sion of  parliament  in  which  application  for  the  bill  shall  be 
made ;  which  plans  shall  describe  the  line  or  situation  of 
the  whole  of  the  work,  and  the  lands  in  or  through  which 
it  is  to  be  made,  maintained,  varied,  extended  or  enlarged, 
or  through  which  every  communication  to  or  from  the  work 
shall  be  made,  together  with  a  book  of  reference  containing 
the  names  of  the  owners  or  reputed  owners,  lessees  or  re- 
puted lessees,  and  occupiers  of  such  lands  respectively ;  and 
in  the  case  of  bills  relating  to  turnpike  roads,  cuts,  canals, 
reservoirs,  acqueducts  and  railways,  a  section  and  duplicate 
thereof,  as  hereinafter  described,  shall  likewise  be  deposited 
with  such  plan  and  duplicate.  — H.  C.  23  ;  H.  L.  223,  s.  3. 

Lauds  within  Deviation  to  be  on  Plan. — Buildings,  S^c.to  he  on 
enlarged  Scale. 

That  where  it  is  the  intention  of  the  parties  to  apply  for 
powers  to  make  any  lateral  deviation  from  the  line  of  the 
proposed  work,  the  limits  of  such  deviation  shall  be  defined 
upon  the  plan,  and  all  lands  included  within  such  limits 
shall  be  marked  thereon,  and  that  in  all  cases,  excepting 
where  the  whole  of  such  plan  shall  he  upon  a  scale  of  not 
less  than  a  quarter  of  an  inch  to  every  100  feet,  an  addi- 
tional plan  of  any  building,  yard,  court-yard  or  land  within 
the  curtilage  of  any  building,  or  of  any  ground  cultivated  as 
a  garden,  either  on  the  original  line  or  included  within  the 
limits  of  the  said  deviation,  shall  be  laid  down  on  the  said 
plan,  or  on  the  additional  plan  deposited  therewith,  upon  a 
scale  of  not  less  than  a  quarter  of  an  inch  to  every  100  feet. 
H.  C.  24 ;  H.  L.  223,  s.  4. 

Scale  of  Section. 

That  the  section  be  drawn  to  the  same  horizontal  scale  as 
the  plan,  and  to  a  vertical  scale  of  not  less  than  one  inch  to 
every  100  feet,  and  shall  show  the  surface  of  the  ground  (e) 
mai-ked  on  the  plan,  and  the  intended  level  of  the  proposed 
work,  and  a  datum  horizontal  line,  which  shall  be  the  same 
throughout  the  whole  length  of  the  work,  or  any  branch 
thereof  respectively,  and  shall  be  referred  to  some  fixed 
point  stated  in  writing  on  the  section,  near  either  of  the 
termini.— H.  C.  25 ;  H.  L.  223,  s.  5. 

(e)  See  the  case  of  the  Cambridge  and  Lincoln  Line,  ante, 
App.  11.  p.  ccxxvi.,  where  the  preamble  was  negatived  on  the 
ground  of  the  section  showing  the  whole  line  of  country  beyond  a 
certain  point  to  be  ten  feet  lower  than  it  really  was. 


Parliamentary  Practice.  ccliii 


Distances  .to  be  marked  on  Plan  in  Miles  and  Furlongs,  and 
Memorandum  of  Curves. 

That  in  all  cases  where  it  is  proposed  to  make,  vary,  ex- 
tend or  enlarge  ant/  railway,  the  plan  shall  exhibit  thereon 
the  distances  in  miles  and  furlongs  from  one  of  the  termini ; 
and  a  memorandum  of  the  radius  of  every  curve  not  exceed- 
ing one  mile  in  length,  shall  be  noted  on  the  plan  in  miles, 
furlongs  and  chains. — H.  C.  40  a;  H.  L.  227,  s.  3. 

Line  of  Railuay  on  Section  to  correspond  with  upper  surface  of 
Rails, 

That  in  every  section  of  a  railway,  the  line  marked 
thereon  shall  correspond  with  the  upper  surface  of  the  rails. 
— H.  C.  41 ;  H.  L.  227,  s.  4. 

Vertical  Measures  to  be  marked  at  Change  uf  Gradient. 

That  distances  on  the  datum  line  shall  be  marked  in  miles 
and  furlongs,  to  correspond  with  those  on  the  plan  ;  that  a 
vertical  measure  from  the  datum  line  to  the  line  of  railway 
shall  be  marked  in  feet  and  inches  at  each  change  of  the 
gradient  or  inclination ;  and  that  the  proportion  or  rate  of 
inclination  between  each  such  change  shall  also  be  marked. 
— H.  C.  41a;  H.  L.  227,  s.  .'^. 

Height  of  Railway  over  or  under  surface  to  be  marked  at  every 
Crossing  of  a  Road,  6;c. 

That  the  height  of  the  railway  over  or  under  the  surface 
of  every  turnpike  road,  public  carriage-road,  navigable  river, 
canal  or  railway,  or  junction  with  a  railway,  and  (he  height 
and  span  of  every  arch  of  all  bridges  and  viaducts,  shall  be 
marked  in  figures  at  every  crossing  thereof,  and  the  extreme 
height  over  or  under  the  surface  of  the  ground  shall  be 
marked  for  every  embankment  and  cutting;  and  if  any 
alteration  in  the  present  level  or  rate  of  inclination  of  any 
turnpike  road,  carriage-road  or  railway  be  intended,  then 
the  same  shall  be  stated  on  the  said  section,  and  each  num- 
bered ;  also  that  cross  sections,  in  reference  to  the  said  num- 
bers, on  a  horizontal  scale  of  one  inch  to  every  330  feet, 
and  on  a  vertical  scale  of  one  inch  to  every  forty  feet,  shall 
be  added,  to  explain  the  nature  of  such  alterations  more 
clearly.— H.  C.  42 ;  H.  L.  226,  s.  6. 

Tunnelling  and  Viaduct  to  be  marked. 

That  where  tunnelling  as  a  substitute  for  open  cutting,  or 
a  viaduct  as  a  substitute  for  solid  embankment,  be  intended, 


ccliv  Appendix. 

the  tunnelling  shall  be  marked  by  a  dotted  line  on  the  plan, 
and  shall  also  be  marked  on  the  section,  and  the  viaduct 
shall  be  marked  on  the  section. — H.  C.  43 ;  H.  L.  227,  s.  7. 

Standing  Orders  as  to  the  Deposit  of  Plans,  &;c,  with  Clerhs  of  the 
Peace,  S^c.  to  be  printed,  and  a  Copy  delivered  with  the  Plan, 

That  copies  of  so  much  of  the  standing  orders  of  the  House 
of  Lords  on  private  bills  as  relates  to  the  deposit  of  plans,  sec- 
tions, books  of  reference,  and  other  books  and  writings,  or 
extracts  or  copies  of  or  from  the  same,  with  the  clerks  of  the 
peace  of  counties  in  England,  or  Ireland,  sheriff  clerks  in 
Scotland,  parish  clerks  in  England,  schoolmasters  in  Scot- 
land, town  clerks  of  royal  burghs  in  Scotland,  clerks  of  the 
union  in  Ireland,  and  other  persons,  be  delivered  to  every 
such  clerk  of  the  peace,  sheriff  clerk,  parish  clerk,  school- 
master, clerk  of  the  union,  and  other  person,  at  the  same 
time  with  the  plan  or  other  writing,  or  extract  or  copy  of  or 
from  such  plan  or  other  writing,  deposited  with  him. — 
H.  L.  223,  s.  11. 

Clerks  of  Peace,  5fc.  to  indorse  a  Memorial  on  Plans,  S;c.,  denoting 
the  Time  at  which  the  same  were  lodged. 
That  the  clerks  of  the  peace,  or  sheriff  clerks,  or  their 
respective  deputies,  do  make  a  memorial  in  writing  upon 
the  plans,  sections,  and  books  of  reference  so  deposited  with 
them,  denoting  the  time  at  which  the  same  were  lodged  in 
their  respective  offices,  and  do  at  all  seasonable  hours  of  the 
day  permit  any  person  to  view  and  examine  one  of  the 
same,  and  to  make  copies  or  extracts  therefrom;  and  that 
one  of  the  two  plans  and  sections  so  deposited  be  sealed  up 
and  retained  in  the  possession  of  the  clerk  of  the  peace  or 
sheriff  clerk  until  called  for  by  order  of  one  of  the  two 
houses  of  parliament.  (See  1  Vict.  c.  83.)— H.  C.  26;  H. 
L.  223,  s.  6. 

Plans  and  Sections  of  Railways  with  Boohs  of  Reference  to  be 
deposited  at  the  Board  of  Trade, 

That  in  the  case  of  railway  bills,  a  copy  of  all  plans, 
sections,  and  books  of  reference,  required  by  the  orders  of 
the  two  houses  to  be  deposited  in  the  office  of  any  clerk  of 
the  peace  or  sheriff  clerk,  on  or  before  the  30th  da)'  of  No- 
vember immediately  preceding  the  session  of  parliament  in 
■which  application  for  the  bill  shall  be  made,  together  with 
a  published  ii>ap  to  a  scale  of  not  less  than  half  an  inch  to 
a  mile,  with  the  Ime  of  railuiaif  delineated  thereon,  so  as  to 
show  its  general  course  and  direction,  shall  on  or  before  the 


Parliamentary  Practice.  cclv 

same  day  be  deposited  in  the  office  of  the  railway  depart- 
ment of  the  Board  of  Trade.— H.  C.  23  a;  H.  L.  227,  s.  1. 

Ctrpy  of  so  much  of  the  Plan  and  Section  as  relates  to  each  Parish 
to  be  deposited  with  the  Parish  Clerk,  &;c. 
That  on  or  before  the  31st  day  of  December,  a  copy  of 
so  much  of  the  said  plans  and  sections  as  relates  to  each 
parish  in  or  through  which  the  work  is  intended  to  be  made, 
maintained,  varied,  extended  or  enlarged,  together  with  a 
book  of  reference  thereto,  be  deposited  with  the  parish  clerk 
of  each  such  parish  in  England,  the  schoolmaster  of  each 
such  parish  in  Scotland,  (or  in  royal  burghs  with  the  town 
clerk,)  and  the  clerk  of  the  union  within  which  such  parish 
is  included  in  Ireland. — (See  Act  1  Vict.  c.  83.) — H.  C.  27  ; 
H.  L.  223,  s.  7. 

Copy  of  the  Plans,  Sections,  and  Books  of  Reference  to  be  deposited 
in  the  Private  Bill  Office,  (f) 
That  on  or  before  the  31st  day  of  December,  a  copy  of 
the  said  plans,  sections,  and  books  of  reference  be  deposited 
in  the  Private  Bill  Office  of  the  House  of  Commons. — H.  C. 
28.     See  also  H.  C.  127. 

Copy  of  the  Plans,  Sections,  and  Books  of  Reference  to  be  deposited 

in  the  Office  of  the  Clerk  of  the  Parliaments. 

That  on  or  before  tlie  31st  day  of  December  a  copy  of  the 

said  plans,  sections,  and  books  of  reference  shall  be  deposited 

in  the  office  of  the  clerk  of  the  parliaments. — H.  L.  223,  s.  8. 


3.  Owners,  Lessees  and  Occupiers. 

Application  to  be  made  to  Owners,  Lessees  and  Occupiers,  and 
Lists  made  of  Assents,  Dissents,  and  Neuters. 

That  on  or  before  the  31st  day  of  December,  immediately 
preceding  the  application  for  a  bill  by  which  any  lands  or 
houses  are  intended  to  be  taken,  or  an  extension  of  the  time 
granted  by  any  former  act  for  that  purpose  is  sought,  appli 
cation  in  writing,  (as  to  the  form,  see  Appendix  to  Standing 

(y")  In  a  case  where  the  plans  deposited  in  the  Private  Bill 
Office  and  with  the  clerks  of  the  peace  were  exact  copies,  and 
agreed  with  each  other  in  every  respect,  except  as  to  the  figrtres 
referring  to  their  respective  books  of  reference,  though  each  phm 
and  book  of  reference  was  correct  in  itself,  this  was  held  not 
to  be  a  compliance  with  the  standing  orders.  London  and  P^xe- 
ter  (Gillenham  and  Dunstan)  Railway,  session  1837,  Luml. 
Pari.  Pr.  p.  16. 


cclvi  Appendix. 

Orders  of  the  two  houses,  and  post)  be  made  to  the  owners  (g) 
or  reputed  owners  (A),  lessees  or  reputed  lessees,  and  occu- 
piers, either  by  delivering  the  same  personally  or  by  leaving 
the  same  at  their  usual  place  of  abode,  or  in  their  absence 
from  the  imited  kingdom  with  their  agents  respectively,  of 
which  application  the  production  of  a  written  acknowledg- 
ment by  the  party  applied  to  shall,  in  the  absence  of  other 
proof,  be  sufficient  evidence ;  and  that  separate  lists  be 
made  of  tlie  names  of  such  owners,  lessees,  and  occupiers, 
distinguishing  which  of  them  have  assented,  dissented,  or 
are  neuter  in  respect  thereto. —  H.  C.  17  ;  H.  L.  220,  s.  4. 

hists  of  Owners,  &;c.  to  be  lodged  in  the  Private  Bill  Office,  and 
the  Receipt  thereof  acknowledged  on  the  Petition. 

That  the  lists  of  owners  and  occupiers  be  lodged  in  the 
Private  Bill  Office;  and  that  the  receipt  thereof  be  acknow- 
ledged accordingh',  by  one  of  the  clerks  of  the  said  office, 
upon  the  said  documents,  and  upon  the  petition,  before  it  is 
presented. — H.  C.  127. 

Notice  to  be  given  to  Owners  and  Occupiei-s  when  the  Bill  is  to 
abridge  any  Public  Work, 

That  previous  to  the  presentation  of  a  petition  for  a  bill 
whereby  any  part  of  a  work  authorized  by  any  former  act 
is  intended  to  be  relinquished,  notice  in  writing  of  such  bill 
be  given  to  the  owners  or  reputed  owners  and  occupiers  of 
the  lands  in  which  the  part  of  the  said  work  intended  to  be 
thereby  relinquished  is  situate.— H.  C.  36 ;  H.  L.  223,  s.  12. 
Instead  of  the  words  in  italics,  the  order  of  the  Lords  has, 
"before  any  application,"  also  after  "reputed  owners,"  it 
has  "  lessees,  or  reputed  lessees." 

(^)  As  to  course  to  be  pursued  by  tenants  of  estates  in  Chan- 
cery on  receipt  of  such  notice,  see  Davis  v.  Combermere,  3 
Railw.  Cas.  506.  There  tenant  for  life  of  estates,  the  subject 
of  a  suit,  having  been  served  with  notice  by  a  railway  company 
of  their  intention  to  apply  for  an  act  to  carry  their  railway  through 
these  estates,  applied  by  pention  for  a  reference  to  the  master  to 
inquire  what  proceedings  should  be  taken  with  reference  to  the 
proposed  measure,  and  whether  it  would  be  fit  to  make  any  and 
what  arrangements  with  the  promoters,  and  that  the  petitioner 
might  be  at  Uberty  to  take  such  proceedings,  and  enter  into  such 
arrangements.  'Jhe  order  was  made  as  prayed,  with  liberty  to 
the  petitioner  to  take  proceedings,  &c.  immediately  on  the  mas- 
ter making  his  report. 

(h)  In  the  London  and  Exeter  Railway  application  to  re- 
puted owners  held  sufficient.     Luml.  Pari.  Pr.  p.  8. 


Parliamentary  Practice.  cclvii 

Time  of  giving  Notices,  &;c. 
Except'  in  cases  where  notices  are  required  to  be  affixed 
on  church  doors,  no  notice  given  or  application  made  on  a 
Sunday  or  Christmas-day.  or  before  eight  o'clock  in  the 
forenoon  or  after  ei^ht  o'clock  in  the  afternoon  of  any  day 
will  be  deemed  valid.— U..  C.  36  a;  H.'  L.  224,  s.  7.  The 
Lords  also  except  out  of  the  operation  of  their  order  the  case 
where  a  written  acknowledgment  is  allowed  as  evidence  of 
the  notice  or  application. — H.  L.  224,  s.  7. 

4,  Estimate  and  Subscription  Contract,  (i) 
Estimate  of  Expense  to  be  made,  and  Subscription  under  a 

Contract  entered  into. 
That  an  estimate  of  the  expense  be  made  and  signed  by 
the  person  making  the  same,  and  that  a  subscription  be 
entered  into  nnder  a  contract,  made  as  hereinafter  described, 
to  three-fourths  the  amount  of  the  estimate,  (/c) — H.  C. 
29;  H.  L.  224,  s.  1.  See  as  to  depositing  estimate  and 
subscription  contract  in  Private  Bill  Office,  H.  C.  1 27. 

(i)  The  subscription  contract  must  specify  all  the  objects  for 
which  application  is  intended  to  be  made  to  parliament.  In  the 
Bolton  and  Preston  Railway  petition,  session  1837,  the  subscrip- 
tion contract  provided  only  for  the  formation  of  a  railway  be- 
tween Bolton  and  Preston,  whereas  the  petition  for  the  bill  prayed 
in  addition  for  leave  to  purchase  or  rent  a  poftion  of  the  Lancas- 
ter Canal  and  Tram  Road.  The  committee  reported  that  the 
subscription  contract  was  not  in  compliance  with  the  standing 
orders.     Luml.  Pari.  Pr.  p.  22. 

(k)  Doubts  have  arisen  as  to  the  proper  mode  of  framing  this 
contract  in  a  case  of  frequent  occurrence,  where  one  company  or 
body  of  promoters  are  seeking  to  obtain  power  from  parliament  for 
the  accomplishment  of  different  extensions  or  Imcs  of  railway,  for 
which  there  are  separate  estimates.  The  most  obvious  course  in 
such  a  case,  viz.  to  have  a  parliamentary  contract  for  each  scheme, 
would  in  general  offer  an  insuperable  obstacle  to  the  promoters' 
design,  as  parties  could  not  be  found  willing  to  execute  the 
various  instruments  that  would  be  required  in  such  a  case. 
Different  methods  have  been  adopted  for  obviating  this  diffi- 
culty ;  one  has  been  by  dividing  the  intended  body  of  subscribers 
into  as  many  groups  as  there  are  schemes,  and  assigning  a  sepa- 
rate group  to  each  scheme,  and  then  for  each  of  such  groups  to 
execute  the  subscription  contract  relating  to  that  scheme,  re- 
serving a  power  under  the  subscribers*  deed  to  the  directors  to 
apportion  the  entire  amount  of  each  subscription  among  the  dif- 
ferent schemes  in  such  proportions  as  may  be  ultimately  found 
necessary.  Contracts  framed  on  this  principle  have,  in  several 
instances,  it  is  believed,  passed  the  house.  Another  method  has 
been  to  incorporate  all  the  schemes  in  one  subscription  contract. 


cclviii  Appendix. 

Subscription  Contract  to  Contain  Christian  and  Surnames,  Descrip- 
tion and  Place  of  Abode  of  Subscribers,  S^c. 
That  every  subscription  contract  contain  the  christian  and 
surname,  description  and  place  of  abode  of  every  sub- 
scriber; his  signature  to  the  amount  of  his  subscription, 
with  the  amount  which  he  has  paid  up ;  and  the  name  of 
the  party  witnessing  such  signature,  and  the  date  of  the  same 
respectively.— H.  C.  32 ;  H.  L.  224,  s.  4. 

Subscription  Contract  not  valid  nnless  entered  into  subsequent  to 
the  last  day  of  receiving  Petitions  in  previous  Session, 
That  as  regards  railway  bills  no  subscription  contract  shall 
be  valid,  unless  it  be  entered  into  subsequent  to  the  day  fixed 
in  the  session  of  parliament  previous  to  that  in  which  appli- 
cation is  made  for  leave  to  bring  in  the  bill  to  which  it 
relates,  as  the  last  day  on  which  petitions  for  private  bills 
may  be  presented,  and  unless  the  parties  subscribing  to  it 
bind  themselves,  their  heirs,(/)  executors,  and  administra- 
tors, for  the  payment  of  the  money  so  (/«)  subscribed. — 
H.  C.  40. 

and  this  has  been  held  good  in  several  instances  during  the 
present  session.  (Case  of  North  British,  South-Eastern  and 
South  IMidland  Companies.'*  There  was,  it  may  be  observed,  a 
difference  in  the  form  of  the  South-Eastern  and  North  British 
Companies'  contracts,  the  latter  simply  binding  the  subscribers 
to  pay  the  amount  of  their  respective  subscriptions  towards  all 
the  schemes  collectively,  (North  British  Company) ;  whilst  by 
the  former  the  subscribers  covenanted  to  pay  their  money  towards 
each  scheme  sanctioned  by  parliament  in  the  proportion  which 
the  estimate  for  that  scheme  bore  to  the  estimated  cost  of  all  the 
schemes.  This,  however,  was  held  to  make  no  difference  as  to 
the  sufficiency  of  the  instrument, 

(/)  Where  corporate  companies  become  subscribers  to  a  pro- 
jected railway,  it  is  clear  that  an  execution  by  the  company  as 
such  would  not  satisfy  the  above  standing  orders.  To  escape  from 
this  difficulty,  the  common  plan  is  in  such  case  for  certain  of  the 
directors  or  influential  members  of  the  company  to  execute  the 
contract  on  behalf  and  as  the  trustees  of  the  company. 

(m)  Objections  have  in  several  cases  during  the  present  ses- 
sion been  taken  before  the  sub-committees  on  petitions  to  sub- 
scription contracts  on  the  ground  of  the  parties  with  whom  the 
subscribers  are  made  to  covenant  on  behalf  of  the  companies 
being  themselves  subscribers,  and  consequently  covenanting  with 
themselves  for  the  payment  of  their  own  subscriptions,  there  being 
no  remedy  at  law  in  such  case  against  those  parties  in  case  of 
their  failing  to  comply  with  the  terms  of  the  instrument,  but 
only  in  equity.  (Case  of  the  North  Staffordshire  (Potteries 
Line)  Railway.)   There  one  of  the  trustees  was  a  subscriber,  and 


Parliamentary  Practice.  cclix 

According  to  Order  of  Lords  not  valid,  unless  entered  into  subse- 
'quent  to  commencement  of  previous  Session. 
That  no  subscription  contract,  as  respects  railway  bills, 
shall  be  valid  unless  it  be  entered  into  subsequent  to  the 
commencement  of  the  session  of  parliament  previous  to  that 
in  which  application  is  made  for  the  bill  to  which  it  relates, 
nor  shall  any  subscription  contract  be  valid  unless  the  parties 
subscribing  to  it  bind  themselves,  their  heirs,(»i)  executors, 
and  administrators,  for  the  payment  of  the  money  so  sub- 
scribed.—H.  L.  224,  s.  5. 

Cases  wherein  Declaration  may  be  substituted  in  lieu  if  Subscrip- 
tion Contract. 
That  in  cases  where  the  work  is  to  be  made  by  means  of 
funds,  or  out  of  money  to  be  raised  upon  the  credit  of  present 
surplus  revenue,  belonging  to  any  society  or  company,  or 
under  the  control  of  directors,  trustees,  or  commissioners,  as 
the  case  may  be,  of  any  existing  public  work,  a  declaration 
stating  those  facts,  and  setting  forth  the  nature  of  such  con- 
trol, and  the  nature  and  amount  of  such  funds  or  surplus 
revenue,  and  given  under  the  common  seal  of  the  society  or 
company,  or  under  the  hand  of  some  authorized  officer  of 
such  directors,  trustees,  or  commissioners,  may  be  substi- 
tuted in  lieu  of  the  subscription  contract,  and  in  addition  to 
the  estimate  of  the  expense.  (See  as  to  depositing  estimate 
and  declaration  in  Private  Bill  Office,  H.  C.  127.)— H.  C, 
30;  H.  L.  224,  s.  2. 

Cases  wherein  a  Declaration  and  Estimate  of  Amount  of  Rates 
may  be  stibstituted  in  lieu  of  Subscription  Contract. 

That  in  cases  where  the  work  is  to  be  made  out  of  money 

had  executed  the  contract.  The  deed,  however,  was  allowed  to 
pass,  there  being  a  sufficient  amount  of  subscriptions  remaining 
after  deducting  that  of  the  trustee.  In  the  case  of  a  Scotch 
railway  (Ayrshire  and  Galloway),  the  objection  was  held  not 
to  lie,  as  by  the  law  of  Scotland  the  jurisdiction  at  law  and  in 
equity  was  vested  in  the  same  tribunal.  Where  the  parties  with 
whom  the  covenants  are  made  on  behalf  of  the  company  have 
themselves  not  executed  the  deed,  an  objection,  it  may  be  re- 
marked, has  been  taken  to  the  subscription  contract  on  this 
ground  (Case  of  Macclesfield  and  Liciifield  Railway,  session 
1846.)  The  deed,  however,  was  allowed  to  pass,  proof  being 
given  of  the  acceptance  of  the  trust  by  the  trustees.  Upon  the 
whole,  it  would  seem  to  be  prudent  for  the  promoters  of  railway 
projects  both  to  choose  as  trustees  persons  who  are  not  sub- 
scribers, and  also  to  procure  the  parties  so  chosen  to  execute  the 
instruments. 

(m)  See  ante,  p.  cclviii. 


cclx  Appendix. 

to  be  raised  upon  the  security  of  the  rates,  duties  or  revenue 
to  be  created  by  or  to  arise  under  any  bill,  under  which  no 
private  or  personal  pecuniary  profit  or  advantage  is  to  be 
derived,  a  declaration  stating  those  facts,  and  setting  forth 
the  means  by  which  funds  are  to  be  obtained  for  executing 
the  work,  and  signed  by  the  party  or  agent  soliciting  the 
bill,  together  with  an  estimate  of  the  probable  amount  of 
such  rates,  duties  or  revenue,  signed  by  the  person  making 
the  same,  may  be  substituted  in  lieu  of  the  subscription  con- 
tract, and  in  addition  to  the  estimate  of  the  expense.  (See  as 
to  depositing  estimate,  &c.  in  Private  Bill  Office,  H.C,  127.) 
— H.  C.  31;  H.  L.  224,  s.  3. 

Copies  of  Stihscription  Contract,  or  of  Declaration,  6^c.  to  be 
printed  and  delivered  at  the  Vote  Office, 

That  previous  to  the  presentation  of  a  petition  for  a  bill, 
copies  of  the  subscription  contract,  with  the  names  of  the 
subscribers  arranged  in  alphabetical  order,  and  the  amount 
of  the  deposit  respectively  paid  up  by  each  subscriber,  or 
where  a  declaration  and  estimate  of  the  probable  amount  of 
rates  and  duties  are  substituted  in  lieu  of  a  subscription 
contract,  copies  of  such  declaration,  or  of  such  declaration 
and  estimate,  be  printed  at  the  expense  of  the  promoters  of 
the  bill,  and  be  delivered  at  the  vote  office  for  the  use  of  the 
members  of  the  house. —  H.  C.  35. 

Copies  of  the  Subscription  Contract  to  be  printed  at  the  expense 
of  Promoters  of  Bill,  and  deposited  in  the  Office  of  the  Clerk 
of  the  Parliament. 

That  previous  to  the  second  reading  of  the  bill,  copies  of 
the  subscription  contract,  with  the  names  of  the  subscribers 
arranged  in  alphabetical  order,  and  the  amount  of  the  de- 
posit respectively  paid  by  each  such  subscriber,  or  where  a  de- 
claration and  estimate  of  the  probable  amount  of  rates  and 
duties  are  substituted  in  lieu  of  a  subscription  contract, 
copies  of  such  declaration  and  estimate  be  printed  at  the 
expense  of  the  promotei-s  of  the  bill,  and  be  delivered  at 
the  office  of  the  clerk  of  the  parliament  for  the  use  of  the 
House  of  Lords.— H.  L.  224,  s.  6. 


5.  Deposits. 

One  tenth  part  of  Amount  subscribed  to  be  deposited. 
That  previous  to  the  presentation  of  a  petition  for  a  rail- 
way bill,  a  sum  equal  to  one-tenth  part  of  the  amount  sub- 
scribed shall  be  deposited  with   the   Court  of  Chancery  in 
England,  if  the  railway  is  intended  to  be  made  in  England ; 


Parliamentary  Practice.  cclxi 

or  with  the  Court  of  Chancery  in  England  or  the  Court  of 
Exchequer  in  Scotland,  if  such  railway  is  intended  to  be 
made  in  Scotland ;  and  with  the  Court  of  Chancery  in  Ire- 
land, if  such  railway  is  intended  to  be  made  in  Ireland. 
Ptvvidcd  that  the  above  order  shall  not  apply  to  any  rail- 
way bilh  which  have  been  before  parliament  durin"  the 
present  session,  and  which  may  be  again  introduced  in  the 
next  session,  or  which  are  already  provisionally  rcislered 
or  the  subscription  contract  for  zvhich  may  be  aireadi/  exe- 
cuted or  partly  executed  on  the  tzventy-nmth  day  of  July ; 
but  with  respect  to  such  bills,  a  sum  eiptal  to  one-twentieth 
of  the  amoirnt  subscribed  shall  be  deposited  as  before  pro- 
vided.—U.  C.  39  a. 

That  as  respects  all  bills  except  railway  bills,  it  be  proved 
to  the  satisfaction  of  the  committee  before  whom  the  com- 
pHance  with  the  standing  orders  shall  be  proved,  that  a  sum 
equal  to  one-twentieth  part  of  the  amount  subscribed,  and 
as  respects  railway  bills,  a  sum  equal  to  one-tenth  of  the 
amount  subscribed,  has  been  deposited  with  the  Court  of 
Chancery  in  England,  if  the  work  is  intended  to  be  done  in 
England,  or  with  the  Court  of  Chancery  in  England,  or  the 
Court  of  Exchequer  in  Scotland,  if  such  work  is  intended  to 
be  done  in  Scotland,  or  with  the  Court  of  Chancery  in  Ire- 
land, if  such  work  is  intended  to  be  done  in  Ireland  :  pro- 
vided that  the  above  order,  so  Jar  as  respects  the  sum  of 
money  to  be  deposited,  shall  not  apply  to  any  railway  bills 
which  have  been  before  parliament  during  the  present  ses- 
sion, and  which  may  again  be  introduced  in  the  next  session  ; 
but  with  respect  to  such  hills  a  sum  equal  to  one-twentieth 
of  the  amount  subscribed  shall  be  deposited  as  before  pro- 
vided in  cases  of  bills  other  than  railway  bills.  (See  Act 
1  &  2  Vict.  c.  il7).— H.  L.  224,  s.  4. 

6.  Proceedings  previous  &c.  to  Introduction  of  Bill 

INTO  House  of  Lords. 
Plans  and  Sections  of  Alterations  made  subsequeiilly  to  the  Intro- 
duction of    the    Bill  into  Parliament,  to   he   deposited    luith 
Clerks   of  the    Peace,   &;c.,  and  Notices  thereof  publiahed,  and 
Application  made  to  Owners,  &:,c. 

That  where  any  alteration  shall  have  been  made,  or  sliull 
be  desired  by  the  parties  to  be  made,  after  the  iiilroduclion 
of  the  bill  into  parliament,  in  any  work  the  hill  for  which 
shall  be  included  in  the  class  of  bills  licrcmbc-fore  men- 
tioned, and  the  plans  and  sections  for  which  shall  have 
been  deposited  and  the  notices  for  which  shall  have  been 


cclxii  Appendix. 

given  as  before  mentioned,  a  plan  and  section  of  such  alter- 
ation, on  the  same  scale,  and  containing  the  same  particu- 
lars as  the  original  plan  and  section,  together  with  a  book 
of  reference  thereto,  shall  be  deposited  with  the  clerk  of  the 
peace  of  every  county,  riding,  or  division  in  England  or 
Ireland,  and  in  the  office  of  the  sheriff  clerk  of  every  county 
in  Scotland,  in  which  such  alteration  is  proposed  to  be  made ; 
and  a  copy  of  such  plan  and  section,  so  far  as  relates  to  each 
parish,  together  with  a  book  of  reference  thereto,  shall  be 
deposited  with  the  parish  clerks  of  each  such  parish  in 
England,  the  schoolmaster  of  each  such  parish  in  Scotland, 
or  in  royal  burghs  with  the  town  clerk,  and  the  c/erk  of  the 
union  within  ichich  such  parish  in  Ireland  in  included,  in 
which  such  alteration  is  intended  to  be  made,  one  month 
previously  to  the  introduction  of  the  bill  for  making  such 
work  into  the  House  of  Lords;  and  the  intention  to  make 
such  alteration  shall  be  published  in  manner  before  directed 
in  the  London,  Edinburgh,  or  Dublin  Gazette,  as  the  case 
maybe,  and  some  one  and  the  same  newspaper  of  the  county 
in  which  such  alteration  shall  be  situate,  or  if  there  be  no 
such  paper  printed  therein,  then  in  the  newspaper  of  some 
county  adjoining  thereto,  for  three  successive  weeks  pre- 
viously to  the  introduction  of  the  bill  into  the  House  of 
Lords;  and  personal  apphcation,  with  a  notice  in  writing 
in  the  form  hereinbefore  mentioned,  shall  be  made  to  the 
owners  or  reputed  owners,  lessees  or  reputed  lessees,  or, 
in  their  absence  from  the  united  kingdom,  to  their  agents 
respectively,  and  to  the  occupiers  of  lands  through  which 
any  such  alteration  is  intended  to  be  made ;  and  the  con- 
sent of  such  owners  or  reputed  owners,  lessees  or  reputed 
lessees,  and  occupiers,  to  the  making  of  such  alteration, 
shall  be  proved  to  the  satisfaction  of  the  committee  be- 
fore whom  the  compliance  with  the  standing  orders  shall  be 
proved.— H.  L.  223,  s.  9. 

Plans  and  Sections  of  Alterations  to  he  deposited  in  the  Office  of 
the  Clerk  of  the  Parliaments. 
That  previous  to  any  bill  for  making  any  work,  the  bill 
for  which  shall  be  included  in  the  class  of  bills  hereinbefore 
mentioned,  being  brought  to  the  House  of  Lords  from  the 
Commons,  in  which  any  alteration  has  been  made  in  its 
progress  through  parliament,  a  map  or  plan  and  section  of 
such  work,  showing  any  variation,  extension,  or  enlargement 
which  is  intended  to  be  made  in  consequence  of  such  alter- 
ation, shall  be  deposited  in  the  office  of  the  clerk  of  the 
parliaments ;  and  that  such  map  or  plan  and  section  shall 


Parliamentary  Practice.  cclxiii 

be  on  the  same  scale  and  contain  the  same  particulars  as 

the  original  map  or  plan  and  section  of  the  said  work 

H.  L.  223,  s.  10. 

Proceedings  in  the  case  of  Bills  to  empower  any  Company  to  execute 
any  Work  other  than  that  for  which  it  was  originally  esta- 
blished. 

That  no  bill  to  empower  any  company  already  constituted 
by  act  of  parliament  to  execute  any  work  other  than  that 
for  which  it  was  originally  established  shall  be  allowed  to 
proceed  unless  the  committee  on  standing  orders,  when  such 
bill  shall  be  referi-ed  to  that  committee,  or  unless  the  com- 
mittee on  the  bill,  when  the  compliance  with  the  standing 
orders  is  to  be  proved  before  such  committee,  shall  have 
specially  reported, — 

1st.  That  a  draft  of  the  proposed  bill  was  submitted  to  a 
meeting  of  the  proprietors  of  such  company  at  a 
meeting  held  specially  for  that  purpose  : 
2nd.  That  such  meeting  was  called  by  advertisement  in- 
serted for  four  consecutive  weeks  in  the  newspapers 
of  the  county  or  counties  wherein  such  new  works 
were  proposed  to  be  executed,  or  if  there  are  no 
newspapers  published  in  such  county  or  counties, 
then  in  that  of  the  nearest  county  wherein  a  news- 
paper is  published : 
3rd.  That  such  meeting  was  held  on  a  period  not  earlier 
than  seven  days  after  the  last  insertion  of  such  ad- 
vertisement : 
4th.  That  at  such  meeting  the  draft  of  the  proposed  bill 
was  submitted  to  the  proprietors  then  present,  and 
was  approved  of  by  at  least  three-fifths  of  such  pro- 
prietors.—H.  L.  220,  s.  5. 

Copy  of  Bill  to  be  deposited  at  the  Board  of  Trade. 

That  in  the  case  of  railway  bills  a  copy  of  every  bill  as 
brought  into  the  House  of  Lords  be  deposited  in  the  office 
of  the  railway  department  of  the  Board  of  Trade. — H.  L. 
227,  s.  2. 

With  respect  to  Bills  for  the  Incorporation  of  Companies. 

That  when  in  any  bill  to  be  hereafter  introduced  into  this 
House,  for  the  purpose  of  estah/i.shin<i  a  company  for  carry- 
ing on  any  work  or  undertaking,  the  Tiaine  of  any  person 
or  persons  shall  be  introduced  as  manager,  director,  pro- 
prietor, or  otherwise  concerned  in  currying  such  bill  into 
effect,  proof  shall  be  required  before  the  standing  order  com- 
mittee that  the  said  person  or  persons  have  subscribed  their 


cclxiv  Appendix. 

names  to  the  petition  for  the  said  bill,  or  to  a  printed  copy 
of  the  said  bill,  as  brought  up  or  introduced  into  the  House. 


— H.  L.  22i 


Section  II. 

PROVISIONS,  &C.  TO  BE  INSERTED  IN  BILLS. 

1.  Of  Provisions  required  by  Standing  Orders  of  Commoas. 

2.  Of  Provisions  required  by  Standing  Orders  of  Lords. 


1.  Of  Provisions,  &c.  required  by  Standing  Orders  of 
Commons. 

Clause  compelling  Payment  of  Subscriptions,  (n) 
That  in  all  bills  presented  to  the  House  for  carrying  on 
any  work  by  means  of  a  company,  commissioners,  or  trus- 
tees, provision  be  made  for  compelling  persons  who  have 
subscribed  any  money  towards  carrying  any  such  work  into 
execution,  to  make  payment  of  the  sums  severally  sub- 
scribed by  them. — H.  C.  76. 

(o)  Provision  to  be  made  in  Bills  ly  which   Tolls,  ^'c.  may  he 
levied. 

That  in  all  bills  whereby  any  parties  are  authorized  to 
levy  fees,  tolls,  or  other  rate  or  charge,  clauses  be  inserted, 
pro^nding  for  the  following  objects,  except  in  so  far  as  any 
of  such  objects  shall  have  been  provided  for  in  some  general 
act  applicable  to  the  subject  matter  of  the  bill: — 

Security  to  be  taken  from  Treasurer,  4'c.  That  security 
be  taken  from  the  treasurer,  collector,  or  receiver,  and  every 
other  officer  entrusted  with  the  collection  or  custody  of 
monies  under  the  bill,  for  the  faithful  execution  of  his  office. 

Accounts  to  be  kept.  That  full  and  accurate  accounts  be 
kept  of  all  monies  received  and  expended  under  the  pro- 
visions of  the  bill,  and  that  such  accounts  be  balanced  once 
in  each  year  at  the  least. 

Accounts  to  be  audited.  That  such  accounts  be  duly  au- 
dited once  in  each  year  at  the  least,  and  that  for  sucli  pur- 
pose an  auditor  or  auditors  be  appointed  by  some  person  or 
persons  not  immediately  connected  with  the  commissioners, 

(n)  See  Companies  Clauses  Consolidation  Act,  8  Vict.  c.  16, 
s.  21,  App.  I. 

(o)  Compare  with  this  order  Companies  Clauses  Consolidation 
Act,  8  Vic.  c.  16,  ss.  91,  101,  106,  108,  109,  115,  116,  App.  I. 


Parliamentary  Practice.  cclxv 

directors,  trustees,  or  other  party,  by  whom,  or  by  whose 
direction  or  authority,  such  fees,  tolls,  rates,  or  charges  shall 
be  levied. 

Accounts,  Vouchers,  SjC,  to  be  produced  to  Auditors.  That 
for  the  purpose  of  auditing  such  accounts,  the  commission- 
ers, directors,  trustees,  or  other  such  party  as  aforesaid,  be 
required  to  cause  the  accounts,  together  with  all  their  books 
and  vouchers,  to  be  produced  to  the  auditors. 

Remuneration  to  Auditors.  That  the  remuneration  of  the 
auditor  and  his  expenses  be  defrayed  out  of  the  funds 
levied  under  the  bill. 

Account  to  he  annually  transmitted  to  Clerk  of  Peace. 
That  an  annual  account,  in  abstract,  be  prepared  of  the 
total  receipts  and  expenditure  of  all  funds  levied  under  such 
bill  for  the  past  year,  usder  the  several  distinct  heads  of 
receipts  and  expenditure,  with  a  statement  of  the  balance 
of  the  said  account  duly  audited  and  certified  by  the  chair- 
man of  the  commissioners,  directors,  trustees,  or  other  parties 
aforesaid,  and  also  by  the  auditors  thereof;  and  that  a  copy 
of  such  annual  account  be  transmitted,  free  of  charge,  to 
the  clerk  of  the  peace  (or  in  Scotland  to  the  sheriff  clerk) 
for  the  county,  or  to  the  clerk  of  the  city  or  borough  within 
which  the  chief  office  for  the  management  of  such  funds 
shall  be  situated,  on  or  before  the  thirty-first  day  of  January 
in  each  year,  under  a  sufficient  penalty  for  not  jjreparing 
and  sending  in  the  said  account,  to  be  levied  by  summary 
process ;  the  said  account  to  be  open  at  all  seasonable  hours 
to  the  inspection  of  the  public  upon  payment  of  a  fee.  (a) — 
H.C.  77. 

Restrictions  as  to  Mortgage. 

That  in  the  case  of  a  railway  bill,  no  company  shall  be 
authorized  to  raise,  by  loan  or  mortgage,  a  larger  sum  than 
one-third  of  their  capital;  and  that  until  fifty  per  cent,  on 
the  whole  of  the  capital  shall  have  been  paid  up,  it  shall  not 
be  in  the  power  of  the  company  to  raise  any  money  by  loan 
or  mortgage. — H.  C.  84. 

Let'el  of  Roads. — Fence  to  be  made  to  Bridges.  (/») 
That  where  the  level  of  any  road  shall  be  altered  in 
making  any  railway,  the  ascent  of  any  turn])ike  road  shall 
not  be  more  than  one  foot  in  thirty  feet ;  and  of  any  other 
public  carriage-road  not  more  than  one  foot  in  twenty  feet ; 
unless  a  report  from  some  officer  of  the  Railway  Depart- 
(a)  See  Railways  Clauses  Consolidation  Act,  8  Vict.  c.  20, 
s.  107,  App.  I. 

(6)  See  ib.  ss.  49,  50. 

H  H 


cclxvi  Appendix. 

ment  of  the  Board  of  Trade  shall  be  laid  before  the  com- 
mittee on  the  bill,  recommending  that  steeper  ascents  than 
the  above  may  be  allowed,  with  the  reasons  and  facts  upon 
■which  such  opinion  is  founded,  and  the  committee  shall 
report  in  favour  of  such  recommendation  :  also,  that  a  good 
and  sufficient  fence,  of  four  feet  high  at  the  least,  shall  be 
made  on  each  side  of  every  bridge  which  shall  be  erected. — 
H.  C.  85. 

Railways  not  to  cross  Highways  on  same  level. 
That  no  railway  whereon  carriages  are  propelled  by  steam, 
or  by  atmospheric  agency,  or  drawn  by  ropes  in  connexion 
with  a  stationary  steam-engine,  shall  be  made  across  any 
turnpike  road  or  other  public  carriage-way  on  the  level, 
unless  the  committee  on  the  bill  report  that  such  a  restrict- 
tion  ought  not  to  be  enforced,  with  the  reasons  and  facts 
upon  which  their  opinion  is  founded. — H.  C.  86. 

Clauses  to  be  iiisei-ted  in  Railway  Bills,  (b) 
Resolved,  that  in  all  railway  bills  there  be  inserted  the 
following  clauses,  except  where  the  same  objects  shall  have 
been  provided  for  in  some  general  act  applicable  to  the  un- 
dertaking intended  to  be  authorized  by  the  bill : — 

1.  Railwai/  not  to  be  proceeded  with  till  certain  Plans, 
4-c.  deposited.  And  be  it  further  enacted,  that  it  shall  not  be 
lawful  for  the  said  company  to  proceed  in  the  execution  of 
the  said  railway  hereinbefore  authorized  to  be  made,  unless 
the  said  company  shall  have,  previously  to  the  commence- 
ment of  such  work,  deposited  with  the  clerk  of  the  peace 
of  the  several  counties  in  England  or  Ireland,  and  in  the 
office  of  the  principal  sheriff  clerk  in  every  county  in 
Scotland,  in  or  through  which  the  said  railway  hereby  au- 
thorized to  be  made  is  intended  to  pass,  a  plan  and  section 
of  all  such  alterations  from  the  original  plan  and  section  as 
shall  have  been  approved  of  by  Parliament,  on  the  same 
scale,  and  containing  the  same  particulars  as  the  original 
plan  and  section  of  the  railway  ;  and  also  with  the  clerks  of 
the  several  parishes  in  England,  the  schoolmasters  of  the 
several  parishes  in  Scotland,  (or  in  royal  burghs  with  the 
tov/n  clerk,)  and  the  clerks  of  the  unions  in  which  such 
parishes  are  included  in  Ireland,  in  or  through  which  such 
alterations  shall  have  been  authorized  to  be  made,  copies  or 
extracts  of  or  from  such  plans  and  sections  as  shall  relate 
to  such  parishes  respectively,  and  all  persons  interested  shall 

(b)  See  Railways  Clauses  Consolidation  Act,  8  Vict.  c.  20, 
ss.  8,  11,  13,  14 ;  App.  I.,  and  1  Vict.  c.  83,  s.  2. 


Parliamentary  Practice.  cclxvii 

have  liberty  to  inspect  and  make  extracts  from  or  copies  of 
the  said  plans  and  sections,  or  extracts  or  copies  thereof, 
paying  to  the  officer  having  the  custody  of  such  plan  and 
section,  or  of  such  extract  or  copy,  tlie  sum  of  one  shilling 
for  every  such  inspection,  and  after  the  rate  of  sixpence  for 
every  one  hundred  words  copied  therefrom. 

2.  Limiting  Deviations  from  Datum  Line  described  on 
the  Section.  And  be  it  further  enacted,  that  in  makinw  the 
said  railway  it  shall  not  be  lawful  for  the  said  company  to 
deviate  from  the  levels  of  the  said  railway,  as  referred  to 
the  common  datum  line  described  in  the  section  so  approved 
of  by  Parliament,  and  as  marked  on  the  same,  to  any  ex- 
tent exceeding  in  any  place  five  feet,  or  in  passing  through 
towns  two  feet,  without  the  consent  of  the  owners,  lessees, 
and  occupiers,  of  the  land  in,  through,  or  over  which  such 
deviation  is  intended  to  be  made ;  or  in  case  any  street  or 
public  carriage  road  shall  be  affected  by  such  deviation,  then 
the  same  shall  not  be  made  without  the  consent  of  the 
trustees  or  commissioners,  or  if  there  be  no  such  trustees 
or  commissioners,  without  the  consent  of  two  or  more  justices 
of  the  peace  in  petty  sessions  assembled  for  that  purpose, 
and  acting  for  the  district  in  which  such  street  or  public 
carriage  road  may  be  situated,  or  without  the  consent  of  the 
commissioners  for  any  public  sewers,  or  the  proprietors  of 
any  canal  or  navigation  affected  by  such  deviation :  provided 
always,  that  it  shall  be  lawful  for  the  company  to  deviate 
from  the  said  levels  to  a  further  extent  without  such  consent 
as  aforesaid,  by  lowering  solid  embankments  or  viaducts, 
provided  that  the  requisite  height  of  headway  prescribed  by 
act  of  Parhament  be  left  for  roads,  streets,  or  canals  passing 
under  the  same. 

3.  Arches  and  Viaducts  as  marked  on  Plan  and  Section 
to  be  made,  Sfc.  And  be  it  further  enacted,  that  where  in 
any  place  it  is  intended  to  carry  the  railway  on  an  arch  or 
arches,  or  other  viaduct,  as  marked  on  the  said  plan  or  sec- 
tion, the  same  shall  be  made  accordingly ;  and  where  a  tun- 
nel is  marked  on  the  said  plan  or  section  as  intended  to  be 
made  at  any  place,  the  same  shall  be  made  accordingly,  i:n- 
less  the  owners,  lessees,  and  occupiers  of  the  land  in  or 
through  which  such  tunnel  is  intended  to  be  made  sliall  con- 
sent that  the  same  shall  not  be  so  made:  provided  always, 
that  notice  of  every  petty  sessions  to  be  holden  for  the  pur- 
pose of  obtaining  such  consent  as  is  hereinbefore  rc(|iiired, 
shall,  fourteen  days  previous  to  the  hukling  of  such  petty 
sessions,  be  given  in  some  newspaper  circulating  in  the 
county,  and  also  be  affixed  upon  the  cliurch  door  of  the 

M  M  2 


cclxviii  Appendix. 

parish  in  which  such  deviation  or  alteration  is  intended  to 
be  made,  or  if  there  be  no  church,  some  other  place  to 
which  notices  are  usually  affixed ;  and  provided  also,  that, 
for  the  purpose  of  consenting  to  any  deviations  from  the 
said  sections,  and  to  any  tunnelling  or  arching  as  aforesaid, 
the  word  "  owners"  shall  be  deemed  and  taken  to  mean  such 
persons  as  are  herein  capacitated  to  agree  for  the  sale  of 
and  to  convey  land  for  the  making  of  the  said  railway;  and 
the  consent  of  such  persons,  with  or  without  the  consent  of 
anj^  other  persons  interested  as  owners  in  the  said  lands, 
shall  be  deemed  and  taken  to  be  sufficient  for  such  purposes. 

4.  Limiting  Deviations  from  Gradients,  Curves,  Tunnels, 
SfC  And  be  it  further  enacted,  that  it  shall  not  be  lawful  for 
the  said  company  to  deviate  from  or  alter  the  gradients, 
curves,  tunnels,  or  other  engineering  works,  described  in 
the  said  plan  or  section,  except  within  the  following  limits, 
and  under  the  following  conditions,  viz. : — 

"  Subject  to  the  above  provisions  in  regard  to  altering 
levels,  it  shall  be  lawful  for  the  company  to  diminish  the  in- 
clination or  gradients  of  the  said  railway  to  any  extent,  and 
to  increase  the  said  inclination  or  gradients  as  follows;  (that 
is  to  say)  in  gradients  of  an  inclination  not  exceeding  one 
in  a  hundred  to  any  extent  not  exceeding  ten  feet  per  mile, 
or  to  to  any  further  extent  which  shall  be  certified  by  the 
lords  of  the  committee  of  privy  council  for  trade  to  be  con- 
sistent with  public  safetj',  and  not  prejudicial  to  public  in- 
terests ;  and  in  gradients  of  or  exceeding  the  inclination  of 
one  in  a  hundred  to  any  extent  not  exceeding  three  feet  per 
mile,  or  to  any  further  extent  which  shall  be  so  certified  by 
the  lords  of  the  said  committee  as  aforesaid : 

"  It  shall  be  lawful  for  the  company  to  diminish  the  radius 
of  any  curve  described  in  the  said  plan,  to  any  extent  which 
shall  leave  a  radius  of  not  less  than  half  a  mile,  or  to  any 
furtlier  extent  authorized  by  such  certificate  as  aforesaid 
from  the  lords  of  the  said  committee: 

"  It  shall  be  lawful  for  the  company  to  make  a  tunnel, 
not  marked  on  the  said  plan  or  section,  instead  of  a  cutting, 
or  a  viaduct  instead  of  a  solid  embankment,  if  authorized 
by  such  certificate  as  aforesaid  from  the  lords  of  the  said 
committee. — H.  C.  88. 


2.  Of  Provisions,  &c.  required  by  Standing  Orders 

OF  House  of  Lords. 
To  a  great  extent  these  are  coincident  with  those  which 
we  have  just  seen  to  be  required  in  the  Commons,  the  1st, 


Parliamentary  Practice.  cclxix 

2nd,  and  3rd  paragraphs  of  sect.  4,  and  the  1st,  2nd,  3rd, 
and  4th  paragraphs  of  sect.  5  of  the  233rd  Order  of  the 
House  of  Lords,  respectively  corresponding  with  the  84, 
85,  86,  and  88  Orders  of  the  House  of  Commons  that  have 
been  just  stated.  It  is  proposed  accordingly  to  notice  those 
provisions,  &c.  only,  which  are  peculiar  to  the  House  of 
Lords. 

Provision  to  he  made  in  Indomre  Bills,  SfC,  relative  to 
paying  Purchase  Money  into  the  Bank,  (a)  Ordered,  by  the 
lords  spiritual  and  temporal  in  parliament  assembled,  That 
in  any  bill  included  in  either  of  the  three  classes  above 
mentioned,  whenever  any  sum  of  money  is,  under  the  pro- 
visions of  such  act,  to  be  paid  for  the  purchase  or  exchange 
of  any  lands,  tenements,  or  hereditaments,  and  which  sum 
of  money  ought  to  be  laid  out  in  the  purchase  of  other  lands, 
tenements,  or  hereditaments,  to  be  settled  to  the  same  uses, 
provision  shall  be  made  in  the  said  bill  that  such  sum  of 
money,  not  being  less  than  the  sum  of  two  hundred  pounds, 
be  paid  into  the  Bank  of  England,  in  the  name  and 
with  the  privity  of  the  accountant-general  of  the  Court  of 
Chancery,  to  be  placed  to  his  account  ex  parte  the  com- 
missioners under  such  particular  bill,  or  under  such  other 
title  as  by  the  said  bill  shall  be  directed,  pursuant  to  the 
method  prescribed  by  the  act  of  the  twelfth  year  of  King 
George  the  First,  chapter  thirty-two,  and  the  general  orders 
of  the  said  court,  and  without  fee  or  reward,  if  such  bill 
relate  to  England,  or  into  one  of  the  banks  of  Scotland 
established  by  act  of  Parliament  or  royal  charter  if  such 
bill  relate  to  Scotland,  or  into  the  Bank  of  Ireland,  in  the 
name  and  with  the  privity  of  the  accountant-general  of  the 
Court  of  Chancery  in  Ireland,  pursuant  to  an  act  of  the 
Irish  Parliament  of  the  23rd  and  24th  Geo.  III.,  and  the 
general  orders  of  the  said  court,  and  without  fee  or  reward, 
if  such  bill  relate  to  Ireland ;  and  shall,  when  so  paid  in, 
there  remain  until  the  same  shall,  by  order  of  the  court  into 
which  the  same  may  be  paid,  or  the  court  of  session  in 
Scotland,  in  case  the  same  be  paid  into  any  bank  in  Scot- 
land, upon  a  petition  to  be  preferred  to  the  court  in  a  sum- 
mary way,  be  applied  either  in  the  purchase  of  land  tax,  or 
towards  the  discharge  of  any  debts  or  incumbrances  affect- 
ing the  said  lands,  tenements,  and  hereditaments  so  pur- 
chased or  exchanged ;  or  until  the  same  shall,  upon  the  like 

(a)  See  Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18,  ss. 
69,70,71,72,73,  App.  I. 


cclxx  Appendix. 

application,  be  laid  out  in  a  summary  way,  by  order  of  the 
court,  in  the  purchase  of  other  lands,  tenements,  or  here- 
ditaments, to  be  settled  to  the  like  uses  ;  and  in  the  mean- 
time, and  until  such  order  can  be  made,  such  money  may, 
if  paid  into  the  Bank  of  England  or  Bank  of  Ireland,  by 
order  of  the  court,  be  laid  out  in  some  of  the  public  funds, 
or  in  government  or  real  securities,  and  the  dividends  or 
interest  arising  therefrom  shall,  by  order  of  the  court,  be 
paid  to  such  person  or  persons  as  would  for  the  time  being 
be  entitled  to  the  rents  and  profits  of  such  lands,  tenements, 
and  hereditaments  so  to  be  purchased,  conveyed,  and  settled  : 
and  in  case  such  sum  of  money  shall  be  less  than  the  sum 
of  two  hundred  pounds,  and  shall  exceed  the  sum  of  twenty 
pounds,  then  and  in  such  case  such  sum  of  money  shall, 
with  the  approbation  of  the  commissioners  acting  under 
such  act,  or  the  directors  of  any  company  incorporated  under 
such  act,  or  any  three  or  more  of  them,  be  paid  and  applied 
in  manner  hereinbefore  directed,  or  may  be  paid  into  the 
hands  of  two  ti-ustees,  to  be  nominated  by  the  person  or 
persons  who  for  the  time  being  would  be  entitled  to  the  rents 
and  profits  of  the  lands,  tenements,  and  hereditaments  so 
to  be  purchased  and  settled,  such  nomination  to  be  approved 
of  by  three  or  more  of  the  said  commissioners  or  directors, 
and  such  nomination  and  approbation  to  be  in  writing,  under 
the  hands  of  the  person  so  nominating  and  approving  ;  and 
the  money  so  paid  to  such  trustees  shall  by  them  be  applied 
in  like  manner  as  is  before  directed  with  respect  to  the  money 
so  to  be  paid  into  the  Bank  of  England,  or  any  of  the  banks 
of  Scotland  established  by  act  of  parliament  or  royal  charter, 
or  the  Bank  of  Ireland,  but  without  any  order  of  the  court 
touching  the  application  thereof:  and  in  case  such  sum  of 
money  shall  not  exceed  twenty  pounds,  then  the  same  shall 
be  paid  to  the  person  or  persons  who  for  the  time  being 
would  be  entitled  to  the  rents  and  profits  of  the  lands,  tene- 
ments, and  hereditaments  so  to  be  purchased  and  conveyed, 
for  his,  her,  or  their  own  use  and  benefit. —  H.  L.  228. 

Time  to  be  limited  for  the  Completion  of  Works,  (b) 
That  in  case  the  work  intended  to  be  carried  into  effect 
under  the  authority  of  the  bill  shall  not  have  been  completed, 
so  as  to  answer  the  objects  of  such  bill,  within  a  time  to  be 
limited,  all  the  powers  and  authorities  thereby  given  shall 
thenceforth  cease  and  determine,  save  only  as  to  so  much  of 
such  work  as  shall   have  been  completed  within  such  time, 

(b)   See  Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18, 
s.  123,  App.  I. 


Parliamentary  Practice.  cclxxi 

with  such  provisions  and  qualifications  as  the  nature  of  the 
case  shall  require. — H.  L.  233,  s.  4,  par.  4. 

Directors,  (c) 

That  in  every  railway  bill  there  be  inserted  a  clause  to 
enact,  "  That  the  directors  appointed  by  this  act  shall  con- 
tinue in  office  until  the  first  ordinary  meeting  to  be  held 
after  the  passing  of  the  act,  and  at  such  meeting  the  share- 
holders present,  personally  or  by  proxy,  may  either  continue 
in  office  the  directors  appointed  by  this  act,  or  any  number 
of  them,  or  may  elect  a  new  body  of  directors,  or  directors 
to  supply  the  places  of  those  not  continued  in  office,  the 
directors  appointed  by  this  act  being  eligible  as  members  of 
such  new  body." — H.  L.  233,  s.  5,  par.  5. 

To  a  great  extent  it  may  be  remarked  the  objects  of  the 
above  orders  are  provided  for  by  the  general  consolidation 
acts  of  last  session,  (see  notes  to  pages  cclxiv.  et  seq.  up  to 
p.  cclxxi.)  Therefore,  where,  as  is  usually  the  case,  these 
acts  are  incorporated  with  the  special  act,  the  insertion  of 
the  above  provisions,  &c.  in  the  latter  act  becomes  so  far 
unnecessary. 

Section  III. 

PROCEEDINGS  IN  THE  HOUSE  OF  COMMONS. 

1 .  General  Rules  as  to  Conduct  of  Bill. 

2.  Petition. 

3.  Committee  on  Petition. 

4.  Committee  on  Standing  Orders. 

5.  Presentation  of  Bill. 

6.  First  Reading. 

7.  Second  Reading. 

8.  Committee  of  Selection. 

9.  Resolutions  of  Session  of  1845. 

10.  Classification  Committee. 

11.  Committee  on  Bill. 

(1.)  Constitution  of  Committee. 

(2.)  Time  of  Meeting. 

(3.)  Preliminaries  to  First  Meeting. 

(4.)  Powers,  Functions,  &c.  of  Committee. 

(5.)  General  Course  of  Proceedings. 

(1st.)  On  unopposed  Hill. 

(2ndly.)  On  opposed  Bill. 

(3rdly.)  On  Group  of  competing  Lines. 

12.  Report. 

13.  Consideration  of  Report. 

14.  Third  Reading. 

(c)  See  Companies  Clauses  Consolidation  Act,  8Vict.  c.  16, 
s.  83,  App.  I. 


cclxxii  Appendix. 

1.  General  Rules  as  to  Conduct  of  Bill. 

A  railway  bill,  as  it  usually  gives  a  power  to  levy  tolls, 
and  so  involves  a  pecuniary  charge  upon  the  subject,  must 
in  general  be  first  solicited  in  the  House  of  Commons. 
Out  of  the  house  it  is  taken  charge  of  by  a  person  styled 
a  parliamentary  agent,  but  within  the  house  it  is  (and  in- 
deed must  be)  entrusted  to  the  charge  of  one  or  more  mem- 
bers. 

Before  any  one  can  act  as  a  parliamentary  agent,  he  must 
subscribe  the  requisite  declaration,  and  be  registered  in  a 
book  kept  in  the  Private  Bill  Office,  (a) 

The  parliamentary  agent  is  personally  responsible  for  the 
due  observance  of  the  rules  of  parliament,  and  for  the  pay- 
ment of  all  fees  and  charges.  («)  No  notice  for  any  pro- 
ceeding upon  a  petition  for  a  bill,  &c.  will  be  received  at  the 
Private  Bill  Office,  nor  will  any  party  be  allowed  to  appear 
or  be  heard  upon  any  petition  against  a  bill  until  an  ap- 
pearance has  in  either  case  been  entered  at  that  office  to 
act  as  parliamentary  agent  upon  the  same.  Tiie  parlia- 
mentary agent  may  be  changed,  and  on  notice  to  that 
effect  being  left  at  the  above  office,  his  responsibility  ceases ; 
a  fresh  appearance,  however,  must  in  such  case  be  entered. 
In  certain  cases  of  wilful  misconduct,  &c.,  he  may  be  pro- 
hibited from  practising  by  the  Speaker,  and  this  either  tem- 
porarily or  absolutely,  {b) 

No  member  of  parliament,  or  oflScer,  or  clerk  of  the  house 
is  competent  to  act  as  parliamentary  agent,  (r) 

Upon  the  agent  soliciting  the  particular  bill  devolves  the 
office  of  giving  the  notices  prescribed  by  the  usages  of 
the  house.  These  are  required  to  be  delivered  at  the 
Private  Bill  OflSce  before  six  o'clock  in  the  evening  of  any 
day  on  which  the  house  is  sitting,  and  before  two  o'clock 
on  any  day  when  the  house  is  not  sitting ;  and  after  an  ad- 
journment, no  notice  can  be  given  for  the  first  day  on  which 
it  shall  sit  again.  (</)  These  notices  are  open  to  inspection 
at  the  Private  Bill  Office,  and  are  also  printed  in  tlie  votes. 
Saturday's  notices  are  published  and  delivered  to  members 
on  Monday  morning,  {e) 

The  time  appropriated  for  the  consideration  of  private 
business  is  between  four  and  five  o'clock  in  the  afternoon, 

(a)  Pari.  Paper,  No.  88  of  1837. 

(6)  lb. 

(c)  May  on  Pari.  d.  399. 

{d)  C.  S.  O.  147.' 

(e)  May  on  Pari.  p.  399. 


Parliamentary  Practice.  cclxxiii 

immediately  after  the  meeting  of  the  house,  although  private 
petitions  are  often  read  late  at  night,  after  the  other  business 
is  concluded.  {/) 

In  the  progress  of  a  private  bill  through  the  house,  no 
order  can  be  obtained  but  upon  motion  made  by  a  member, 
and  a  question  proposed  and  put  in  the  usual  manner  from 
the  chair.  The  parliamentary  agent  gives  notice  to  the 
member  or  members  undertaking  the  charge  of  the  bill 
when  to  attend  and  make  the  necessary  motions,  {g) 

No  private  bill  is  allowed  to  pass  through  two  stages  on 
one  and  the  same  day  without  the  special  leave  of  the 
house.  (A) 

Daily  lists  of  committees  sitting.  The  clerks  in  the  Pri- 
vate Bill  Office  prepare  daily  hsts  of  all  private  bills  and 
petitions  for  private  bills  upon  which  any  committee  is  ap- 
pointed to  sit,  specifying  the  hour  of  meeting  and  the  room 
where  the  committee  sit,  and  the  same  are  hung  up  in  the 
lobby  of  the  house,  (i) 

A  register  recording  the  agents'  names,  &c.,  and  all  the 
proceedmgs  from  the  petition  to  the  final  disposal  of  the 
bill,  is  kept  at  the  Private  Bill  Office,  and  is  open  to  public 
inspection  daily  between  the  hours  of  eleven  and  six.  (k). 

2.  The  Petition. 

The  preliminary  steps  having  been  taken,  the  next  sub- 
ject for  consideration  is  the  petition,  without  which,  by  an 
express  Standing  Order,  no  bill  of  a  private  nature  can  be 
brought  in.  (/) 

What  petition  to  contain.  Tiie  petition  should  specify  all 
the  features  of  the  intended  measure ;  usually,  indeed,  it 
follows  the  substance  of  the  notice.  The  bill  will  not  be 
allowed  to  include  any  object  not  specified  in  the  petition  ; 
and  it  may  be  objected  in  any  stage  of  its  progress  through 
the  house,  that  the  bill  does  not  correspond  with  the  peti- 
tion, and  in  many  instances,  upon  the  objection  being 
taken  and  motion  made  in  the  bouse  thereupon,  the  bill  has 
been  discharged,  (m) 

if )  May  on  Pari.  p.  400. 

is)  lb. 

\h)  C.  S.  0.  124.     But  see  post,  Sect.  IX.,  as  to  bills  rein- 
troduced during  present  session, 
(i)    C.  S.  O.  148. 
(/c)  C.  S.  0.  126. 
(0  C.  S.  0.  101. 
\m)  Lumley,  Pari.  Pract.  85,  86. 

M  M  5 


cclxxiv  Appendix. 

The  petition  must  be  signed  by  the  parties  or  some  of 
them,  who  are  suitors  for  the  bill.(?() 

The  petition  of  corporations  aggregate  must  be  under 
their  common  seal,  (o) 

The  petition  must  have  annexed  to  it  a  printed  copy  of 
the  proposed  bill,  {p)  and  a  declaration  in  writing,  signed  by 
the  agent,  as  to  the  class  and  powers  thereof;  {q)  and  the 
agent  is  to  see  that  the  receipt  of  all  plans,  &c.  required 
by  the  standing  orders  to  be  deposited  in  the  Private  BUI 
Office,  is  acknowledged  by  one  of  the  clerks  in  that  office, 
upon  such  documents  and  on  the  petition,  before  it  is  given 
to  the  member  to  present,  (r)  A  copy  of  every  bill  annexed 
to  a  petition  must  also  be  deposited  at  the  Board  of  Trade 
on  or  before  the  day  of  the  presentation  of  the  petition  ;  (s) 
and  likewise  a  copy  of  the  agent's  declaration  must  be  de- 
posited there,  {t)  So  likewise,  previous  to  the  presentation 
of  the  petition,  copies  of  the  subscription  contract,  &c.  must 
be  printed  at  the  expense  of  the  promoters  of  the  bill,  and 
delivered  at  the  vote  office  for  the  use  of  members,  {u)  And 
on  the  day  of  the  presentation  of  the  petition,  a  copy  of 
every  bill  annexed  to  a  petition  and  agent's  declaration 
must  be  deposited  at  the  Private  Bill  Office  for  the  inspec- 
tion of  all  parties,  (.r) 

In  general,  all  petitions  for  private  bills  are  to  be  pre- 
sented within  fourteen  days  after  the  first  Friday  in  every 
session  of  parliament ;  {y)  and  no  petition  will  be  received 
afterwards,  save  by  special  leave  of  the  house,  which  can 
only  be  obtained  on  petition,  showing  satisfactory  reasons 
for  the  delay.  (5) 

The  petition  must  be  placed  in  the  hands  of  a  member  of 
the  house  to  present.  On  the  day  when  it  is  wished  that 
the  petition  should  be  presented,  the  member  entrusted 
with  it  enters  his  name  on  the  Speaker's  private  business 
list,  and  he  will  be  called  on  in  his  turn  by  the  Speaker 
at  the  sitting  of  the  house  at  four  o'clock  on  the  same 
day,  and  the  petition  is  referred  as  a  matter  of  course  to  the 

(n)  C.S.  0.101. 

(0)  Lumley,  Pari.  Pract.  86. 

(p)  C.  S.  O.  101. 

(9)  C.S.  O.  102a. 

(r)  C.S.  O.  127. 

Is)  C.S.  0.39.  102. 

(0    C.  S.  O.  102  a. 

(«)  C.  S.  O.  35.     See  ante,  p.  cclx. 

(x)  C.  S.  0.  128. 

(3/)  C.  S.  O.  102. 

(j)  May  on  Pari.  401. 


Parliamentary  Practice.  cclxxv 

committee  on  petitions,  and  it  is  then  in  the  custody  of  the 
committee  clerk,  (a) 

Should  it  be  desired,  after  the  petition  is  presented,  to 
make  additional  provision  in  the  bill,  a  petition  for  that 
purpose  must  be  presented  with  the  proposed  clauses  an- 
nexed, {b)  

3.  Committee  on  Petition. 

All  petitions  for  private  bills  and  for  additional  provision 
are  referred  to  the  select  committee  on  petitions  for  private 
bills,  appointed  at  the  commencement  of  each  session.  It 
consists  of  forty-two  members,  of  whom  three  are  a 
quorum,  (c)  In  order  to  facilitate  its  proceedings,  it  may 
divide  itself  into  sub- committees,  {d)  each  consisting  of  at 
least  seven  members. 

In  case  of  a  bill  relating  to  England,  seven  clear  days 
must  intervene  between  the  day  of  the  presentation  of  the 
petition  for  such  bill,  and  that  of  the  sub-committee  sitting 
upon  it,  and  ten  days  in  case  the  bill  relate  to  Scotland  or 
Ireland,  (e) 

Also,  before  a  sub-committee  can  proceed  to  consider  a 
petition,  seven  clear  days'  notice  in  writing  must  be  given 
by  the  agent  for  the  bill  at  the  Private  Bill  Office  of  the 
meeting  of  the  sub-committee;  and  in  case  of  a  petition  for 
additional  provision,  one  clear  day's  notice  is  requisite ; 
and  no  such  notice  can  be  given  until  after  such  petition  is 
presented.  (  /') 

By  an  order  of  the  clerk  of  the  House  of  Commons,  the 
clerks  in  the  Private  Bill  Office  may  not  take  such  notice 
until  it  shall  appear,  either  by  an  entry  in  the  votes  and 
proceedings,  or  by  a  certificate  from  one  of  the  clerks  em- 
ployed in  making  them  up,  that  the  petition  has  been  re- 
ferred by  the  house  to  the  committee  on  petitions  for  private 
bills. 

If  the  first  meeting  be  postponed,  one  clear  day's  notice  to 
that  effect  must  be  given  by  the  agent  for  the  bill  at  the  Pri- 
vate Bill  Office,  (g)  By  a  resolution  of  the  present  session 
no  such  notice  is  to  be  received  save  by  the  authority  of  the 
committee  on  petitions.  (/;) 

(a)  Lumley,  Pari.  Pract.  87. 
(6)  C.  S.  O.  103. 

(c)  C.  S.  O.  s.  1. 

(d)  C.  S.  O.  2. 

(e)  C.  S.  O.  104. 

(/)  C.S.  0.129.  See  also  resolutions  of  Feb.  19,  post,  Sect.  IX. 

(g)  C.  S.  O,  130. 

(h)  Resolutions,  Feb.  19,  Votes,  &c.  of  Commons,  p.  377. 


cclxxvi  Appendix. 

Upon  these  sub -committees  devolves  the  duty  of  consider- 
ing whether  the  standing  orders  have  been  comphed  with,  (e) 
Any  parties,  who  have  presented  a  petition  to  the  house  three 
clear  days  before  the  first  meeting  of  the  sub-committee,  com- 
plaining of  non-compliance  with  the  standing  orders,  (such 
petition  being  referred  to  the  committee,)  may  appear  and 
be  heard  by  themselves,  their  agents  and  witnesses,  pro- 
vided, that  is  to  say,  their  petition  specifically  states  the 
matter  complained  of,  and  the  party  affected  by  the  non- 
compliance with  the  standing  orders  is  cognizant  of  and 
consents  to  the  presentation  of  the  petition.  (/') 

It  has  been  ruled,  that  the  term  "agents"  here  must  be 
understood  to  mean  "parliamentary  agents,"  who  have 
complied  with  the  conditions  imposed  by  the  house;  and 
accordingly,  a  solicitor  who  has  not  entered  an  appearance, 
will  not  be  entitled  to  be  heard  by  the  committee,  (g) 

Every  such  petition  must  have  the  name  or  short  title  by 
which  the  bill  to  which  it  relates  is  entered  in  the  votes  written 
on  it  at  the  beginning  thereof  {h)  This  order  will  now  be 
strictly  enforced. 

Compliance  with  the  standing  orders  may,  in  some  in- 
stances, be  proved  by  affidavits,  (i) 

When  the  sub-committee  have  come  to  their  decision, 
they  report  the  same  to  the  house.  If  it  be  to  the  effect 
that  the  standing  orders  have  been  complied  with,  leave  is 
given  to  bring  in  the  bill ;  and  the  members  to  whose  charge 
the  bill  has  been  entrusted  are  ordered  to  prepare  and  bring 
it  in.  If  not,  the  sub-committee  must  report  the  facts  upon 
which  their  decision  is  founded,  and  any  special  circum- 
stances connected  with  the  case,  (/c)  The  report  in  such  case 
is  referred  to  the  select  committee  on  standing  orders.  (/) 


4.  Select  Committee  on  Standing  Orders. 

This  committee  is  appointed  at  the  commencement  of 
every  session,  and  consists  of  eleven  members,  together  with 
the  chairmen  of  the  committee  and  of  the  sub-committees 


(e)  As  to  the  proof  in  such  cases,  see  post.  Sect.  V. 

(/)  C.  S.  0.9. 

(g)  May  on  Pari.  p.  403  ;  case  of  Sir  R.  Harland,  1844. 

(h)  C.  S.  O.  Ill  a. 

(i)  C.  S.  O.  10,  11,  12  J  see  post,  Sect.  V. 

(k)  C.  S.  O.  13, 

(/)  C.  S.  O.  105. 


Parliamentary  Practice.  cclxxvii 

on  petitions  for  private  bills,  of  whom  five  are  a  quorum.  {I) 
It  is  their  duty  to  report  whether  the  standing  orders  not 
complied  with  ought  or  ought  not  to  be  dispensed  with,  and 
the  bill  or  any  part  of  it  proceeded  with ;  and  if  so,  upon 
what  (if  any)  conditions,  {m)  If  the  standing  orders  com- 
mittee report  in  favour  of  the  promoters  of  the  bill,  they 
are  allowed  to  proceed  either  at  once  or  after  complying 
with  the  necessary  conditions,  according  to  the  report  of 
the  committee.  The  proper  course  to  give  effect  to  such 
allowance  is  for  a  member  to  move  that  the  report  be  read 
and  then  that  leave  be  given  to  bring  in  the  bill,  and  the 
compliance  with  the  standing  orders  required  by  the  report 
must  be  proved  afterwards  before  the  committee  on  the 
bill.  («)  If  on  the  other  hand  the  report  be  that  the 
standing  orders  ought  not  to  be  dispensed  with,  the  deci- 
sion is  generally  fatal  to  the  bill,  as  the  house  can  rarely 
be  induced  to  disturb  the  decision  of  the  committee,  (o) 
Where  it  is  sougbt  to  induce  the  house  to  do  so,  the  course 
is  for  the  promoters  of  the  bill  to  present  a  petition  to  the 
house,  praying  for  leave  to  bring  in  the  bill  again,  and 
stating  fully  the  grounds  of  the  appHcation.  (p) 

To  this  same  committee  are  referred  all  petitions  for  leave 
to  dispense  with  any  of  the  sessional  orders  of  the  house  re- 
lating to  private  bills  ;(y)  and  it  is  their  duty  to  report 
whether  such  orders  ought  or  ought  not  to  be  dispensed 
with,  (r) 

5.  Presentation  of  Bill. 

When  leave  has  been  obtained  to  bring  in  a  private  bill, 
it  may  be  presented  on  the  next  or  any  following  day,  and 
in  urgent  cases  on  the  same  day.  (.s)  It  must  be  printed  on 
paper  of  a  folio  size  (as  determined  by  the  Speaker),  with  a 
cover  of  parchment  attached  to  it,  upon  which  the  title  must 
be  written.  The  short  title  of  the  bill  as  first  entered  on  the 
votes,  and  which  must  be  in  accordance  with  the  subject-mat- 
ter, distinguishes  it  in  all  future  stages,  and  cannot  be  altered 

(0  C.  S.  O.  3. 
(m)  C.  S.  0.  46. 
(n)  May  on  Pari.  405. 
(o)  lb. 

(P)  lb. 

(9)  C.  S.  O.  106. 

(r)  lb  47. 

(s)  May  on  Pari.  406. 


cclxxviii  Appendix. 

but  by  special  order  of  the  house,  (s)  Matters  to  be  settled 
in  committee,  such  as  rates,  tolls,  fines,  forfeiture,  penalties, 
&c.  must  be  inserted  in  italics  in  the  printed  bill,  {t) 

Upon  the  back  of  the  bill  must  be  printed  the  name  or 
names  of  the  member  or  membei's  ordered  to  bring  in  the 
bill,  (m) 

On  the  presentation  of  the  bill,  eight  copies  must  by  the 
Speaker's  order  be  delivered  at  the  Public  Bill  Office,  and 
afterwards  a  copy  of  an  amended  breviate  of  every  private 
bill.  It  must  also  be  remembered,  that  one  copy  of  every 
private  bill,  and  two  copies  of  the  printed  breviate,  and  two 
copies  of  the  amended  breviate  and  amended  bill,  are  to  be 
sent  to  the  Private  Bill  Office  for  the  use  of  the  Board  of 
Trade,  {v) 


6.  First  Reading. 

The  bill  may  be  read  a  first  time  immediately  after  it  is 
presented,  though  this  cannot  be  done  until  printed  copies 
have  been  delivered  to  the  doorkeepers  for  the  use  of  the 
members,  (.r)  Care  should  be  taken  to  advance  the  bill 
through  the  preparatory  stages  with  all  due  speed,  as  a  day 
is  named  by  the  house  at  the  beginning  of  the  session,  after 
which  no  private  bill  can  be  read  a  first  time.  This  day 
is  generally  about  seven  weeks  from  the  first  day  of  the 
session,  {y) 

By  a  resolution  of  the  present  session,  no  railway  bill  is  to 
be  read  a  first  time  later  than  the  next  day  but  one  after  the 
report  of  the  committee  on  petitions  or  of  the  standing  order 
committee  on  such  bill,  as  the  case  may  be,  shall  have  been 
laid  on  the  table,  except  by  special  order  of  the  house.  (2) 

7.  Second  Reading. 

Three  clear  days,  but  not  more  than  seven,  except  by  spe- 
cial order  of  the  house,  (a)  must  elapse  between  the  first  and 
second  reading  of  the  bill,  and  the  agent  must  give  three 

(0  C.  S.  0. 107. 
(0  C.  S.  0. 108. 
(u)  Ridd.  Pari.  Pr.  66. 
(d)  May  on  Pari.  406. 
(1)  C.  S. O.  109. 
ly)  May  on  Pari.  407. 

(s)  See  Second  Report  of  Select  Committee  in  Commons  on 
Railways,  6th  resolution,  post,  Sect.  IX. 
(a)  Ibid.,  7th  resolution. 


Parliamentary  Practice.  cclxxix 

clear  days'  notice  in  writing  at  the  Private  Bill  Office  of 
the  day  proposed  for  the  second  reading,  (a)  In  the  in- 
terval that  office  has  the  charge  of  the  bill,  and  it  is  exa- 
mined there  as  to  its  conformity  with  the  rules  and  standing 
orders,  {b) 

The  examining  clerk  specifies  on  the  bill  the  page  in 
which  any  irregularity  occurs.  If  the  bill  is  improperly 
drawn,  or  at  variance  with  the  standing  orders  or  the  order 
of  leave,  the  order  for  the  first  reading  is  discharged,  the 
bill  withdrawn,  and  leave  given  to  bring  in  another,  (c) 

Should  any  peer's  name  appear  in  the  bill  as  trustee, 
commissioner  or  proprietor  of  the  company,  it  will  be  struck 
out.  {d) 

The  bill  cannot  be  read  a  second  time  until  two  months 
have  elapsed  from  the  day  on  which  the  last  notice  was 
given  in  the  newspaper,  nor  until  the  fees  are  paid,  (e)  nor 
until  one  clear  day  after  the  breviate  thereof  has  been  laid 
upon  the  table  of  the  house  and  printed  and  delivered.  (  /  ) 

By  the  Speakers'  order,  two  copies  of  the  printed  breviate 
must  be  sent  to  the  Private  Bill  Office  for  the  use  of  the 
Board  of  Trade. 

Upon  the  second  reading,  the  principle  of  the  bill  comes 
for  the  first  time  into  discussion.  If  the  second  reading  be 
deferred  for  three  or  six  months,  or  the  bill  be  rejected,  no 
new  bill  can  be  offered  until  another  session,  (g) 

No  petition  will  be  received  complaining  of  non-compli- 
ance with  the  standing  orders  subsequently  to  the  second 
reading,  unless  as  to  standing  orders  which  must  neces- 
sarily be  taken  into  consideration  by  the  committee  on  the 
bill.  (A) 

8.  Committee  of  Selection. 
After  thebill  has  been  read  a  second  time,  it  is  immediately 

(a)  C.S.O.  110,  134. 
(h)  C.S.O.  132,  133. 

(c)  May  on  Pari.  407. 

(d)  Speaker's  Order. 

(e)  C.S.O.  112,114, 115.  The  breviate  contains  a  statement 
of  the  object  of  the  bill  and  a  summary  of  the  proposed  enact- 
ments ;  it  also  points  out  any  variation  from  the  general  law, 
which  will  be  effected  by  the  bill  ;  it  is  prepared  by  the  Speaker's 
counsel,  under  his  directions.— May  on  Pari.  408  ;  C.  S.  O.  1 1 3. 

(/)  See  2nd  Rep.  of  Sel.  Coram,  on  Railways  in  Commons, 
8th  Resolution,  post,  Sect.  IX. 
(g)  May  on  Pari.  408. 
(h)  C.S.O.  111. 


cclxxx  Appendix. 

committed,  and  referred  to  the  Committee  of  Selection,  (a) 
This  committee  is  appointed  at  the  commencement  of  the 
session,  and  consists  of  the  chairman  of  the  Standing  Or- 
ders Committee,  and  the  chairmen  of  the  committee  and  of 
the  sub-committees  on  petitions  for  private  bills,  three  of 
whom  are  a  quorum.  (6)  It  is  their  office  to  appoint  the 
committee  on  the  bill.  For  their  guidance  in  the  discharge 
of  this  duty,  the  Standing  Orders  lay  down  certain  rules. 
These  rules  estabhsh  a  difference  between  opposed  and  un- 
opposed bills,  the  latter  being  referred  to  the  chairman  of 
the  Committee  of  Ways  and  Means,  and  the  members  who 
have  prepared  and  brought  in  the  bill ;  (c)  whereas  opposed 
bills  are  referred  to  the  members  on  the  Speaker's  list  of  the 
county,  &c.,  to  which  the  bill  specially  relates,  and  to  such 
number  of  members  not  locally  interested  in  the  bill  as  the 
Committee  of  Selection  under  the  circumstances  of  the  case 
deem  proper,  {d) 

The  inefficiency  of  the  above  mode  of  appointing  com- 
mittees on  bills  for  railways,  which  soon  manifested  itself  in 
the  course  of  the  rapid  increase  of  railway  business,  led, 
during  the  two  last  sessions,  to  a  change  in  the  machinery 
of  those  committees.  The  nature  and  extent  of  that  change, 
and  the  new  system  that  it  created  during  the  last  session 
may  be  best  understood  from  a  review  of  the  resolutions  by 
which  it  was  introduced.  It  is  proposed,  therefore,  to  pro- 
ceed at  once  to  the  consideration  of  such  resolutions. 


9.  Resolutions  (e)  on  Railway  Bills,  March  4,  1845. 

1 .  That  a  committee  of  five  members  be  appointed,  to 
be  called  the  Classification  Committee  of  Railway  Bills,  and 
that  three  be  the  quorum  of  such  committee. 

2.  That  copies  of  all  railway  bills  presented  to  the  house, 
and  a  list  of  all  projected  railways,  of  which  plans  and  sec- 
tions have  been  deposited  in  the  Private  Bill  Office,  be  laid 
before  the  said  committee,  together  with  all  reports  and 
minutes  of  the  Board  of  Trade  upon  such  projected  rail- 
ways, which  shall  have  been  laid,  or  which  shall  from  time 
to  time  be  laid,  before  the  house. 

3.  That  the  Committee  of  Classification  shall  form  into 

(a)  C.S.  0.116. 
(6)  C.S.  0.4. 

(c)  C.  S,  O.  6. 

(d)  C.  S.  O.  5. 

(e)  For  resolutions  of  this  session,  see  post,  Sect.  IX. 


Parliamentary  Practice.  cclxxxi 

groups  all  railway  bills  or  projects  which,  in  their  opinion, 
it  would  be  expedient  to  submit  to  the  same  committee. 

4.  That  committees  on  railway  bills  during  the  present 
session  of  parliament  shall  be  composed  of  a  chairman  and 
four  members,  to  be  appointed  by  the  Committee  of  Selec- 
tion. 

5.  That  each  member  of  a  committee  on  a  railway  bill 
or  bills  shall,  before  he  be  entitled  to  attend  and  vote  on 
such  committee,  sign  a  declaration  that  his  constituents 
have  no  local  interest,  and  that  he  himself  lias  no  personal 
interest  for  or  against  any  bill  or  project  referred  to  him  ; 
and  no  such  committee  shall  proceed  to  business  until  the 
whole  of  the  members  thei-eof  shall  have  signed  such  decla- 
ration. 

6.  That  the  promoters  of  a  railway  bill  shall  be  pre- 
pared to  go  into  committee  on  the  bill  on  such  day  as  the 
Committee  of  Selection  shall,  subject  to  the  order  that  there 
be  seven  clear  days  between  the  second  reading  of  every 
private  bill  and  the  sitting  of  the  committee  thereupon, 
think  proper  to  appoint,  provided  that  the  Classification 
Committee  shall  have  reported  on  such  bill. 

7.  That  the  Committee  of  Selection  shall  not  appoint  an 
earlier  day  for  the  first  meeting  of  the  committee  on  any 
group  of  bills  than  the  twenty-sixth  day  after  the  presen- 
tation to  the  house  of  the  reports  of  the  Board  of  Trade  on 
all  railway  projects  included  in  such  group,  unless  all  the 
petitions  for  bills  relating  to  such  projects  shall  have  been 
sooner  presented. 

8.  That  the  Committee  of  Selection  shall  give  each  mem- 
ber not  less  than  fourteen  days'  notice  of  the  week  in  which 
it  will  be  necessary  for  him  to  be  in  attendance,  for  the  pur- 
pose of  serving,  if  required,  on  a  railway  bill  committee. 

9.  That  the  Committee  of  Selection  shall  give  each  mem- 
ber a  sufficient  notice  of  his  appointment  as  a  member  of  a 
committee  on  a  railway  bill,  and  shall  transmit  to  him  a 
copy  of  the  fifth  resolution,  and  a  blank  form  of  the  decla- 
ration therein  required,  with  a  request  that  he  will  forthwith 
return  it  to  them  properly  filled  up  and  signed. 

10.  That  if  the  Committee  of  Selection  shall  not  within 
due  time  receive  from  such  member  the  aforesaid  declara- 
tion, or  an  excuse  which  they  shall  deem  sufficient,  they 
shall  report  to  the  house  the  name  of  such  defaulting 
member. 

11.  That  the  Committee  of  Selection  shall  have  the 
power  of  substituting,  at  any  time  before  the  first  meeting 


cclxxxii  Appendix. 

of  a  committee,  another  member  for  a  member  whom  they 
shall  deem  it  proper  to  excuse  from  serving  on  that  com- 
mittee. 

12.  That  power  be  given  to  the  Committee  of  Selection 
to  send  for  persons,  papers  and  records,  in  the  execution  of 
the  duties  imposed  on  them  by  the  foregoing  resolutions. 

13.  That  no  member  of  a  committee  shall  absent  himself 
from  his  duties  on  such  committee,  unless  in  the  case  of 
sickness,  or  by  leave  of  the  house. 

14.  That,  if  the  chairman  shall  be  absent  from  the  com- 
mittee, the  member  next  in  rotation  on  the  list  (who  shall 
be  present)  shall  act  as  chairman. 

15.  That  committees  shall  be  allowed  to  proceed  so  long 
as  three  members  shall  be  present,  but  not  with  a  less  num- 
ber, unless  by  special  leave  of  the  house. 

16.  That  if  on  any  day  within  one  hour  after  the  time 
appointed  for  the  meeting  of  a  committee  three  members 
shall  not  be  present,  the  committee  shall  be  adjourned  to 
the  same  hour  on  the  next  day  on  which  the  house  shall  sit, 
which  had  been  fixed  for  that  day. 

17.  That  in  the  case  of  a  member  not  being  present 
within  one  hour  after  the  time  appointed  for  the  meeting  of 
the  committee,  or  of  any  member  absenting  himself  from 
his  duties  on  such  committee,  such  member  shall  be  re- 
ported to  the  house  at  its  next  sitting. 

1 8.  That  each  committee  shall  be  appointed  to  meet  on 
each  day  of  its  sitting  not  later  than  twelve  o'clock,  unless 
by  the  regular  vote  of  the  committee. 

19.  That  parties  promoting  railway  projects,  which  have 
been  grouped  together  by  the  Classification  Committee, 
shall  be  permitted  to  appear  before  the  committee  on  a 
railway  bill  belonging  to  such  group,  and  to  offer  evidence 
either  against  the  bill  immediately  under  the  consideration 
of  the  committee,  or  in  support  of  their  own  projects. 

20.  That  in  committees  on  a  bill  or  bills,  when  such  evi- 
dence has  been  given,  it  shall  be  within  the  competency  of 
a  committee  to  adjourn  their  proceedings  until  the  bill  or 
bills  for  such  other  projects  shall  be  before  them,  care  being 
taken  by  the  Committee  of  Selection  that  in  all  such  cases 
the  bills  for  the  so  opposing  projects  shall  be  referred  to  the 
committee  by  which  the  first  bill  or  bills  had  been  con- 
sidered. 

21.  That,  as  soon  as  the  Committee  of  Classification  shall 
have  determined  what  railway  bills  or  projects  are  to  be 
grouped  together,  they  shall  report  the  same  to  the  house. 


Parliamentary  Practice.  cclxxxiii 

and  all  petitions  against  any  of  the  said  bills  or  projects 
shall  be  presented  to  the  house  three  clear  days  before  the 
meeting  of  the  committee  thereon. 

22.  That  the  committee  on  a  group  of  railway  bills  or 
projects  shall  hear,  so  far  as  may  be  necessary,  parties  ap- 
pearing in  support  of  such  petitions,  so  as  to  receive  without 
interruption  the  whole  of  the  evidence  on  the  general  merits 
of  all  the  bills  or  projects  before  them,  and  also  on  the  de- 
tails of  the  bill  or  project,  or  bills  or  projects,  which  they 
shall  be  of  opinion  ought  to  be  adopted,  in  order  that  if  the 
committee  should  consider  that  a  bill  or  bills  not  yet  read  a 
second  time  at  the  time  of  the  inquiry  ought  to  be  preferred, 
they  may  be  enabled,  when  that  bill  or  bills  shall  be  for- 
mally committed,  to  dispense  with  receiving  any  further 
evidence,  and  to  confine  their  proceedings  to  making  such 
amendments  in  the  clauses  as  their  previous  investigation 
may  have  shown  to  be  necessary. 


10.  Committee  of  Classification. 

In  pursuance  of  the  first  of  the  resolutions  referred  to 
above,  a  committee  were  appointed,  who  from  time  to  time 
reported  to  the  house  what  bills  and  projects  they  thought 
it  expedient  should  be  referred  to  the  same  connnittee. 

The  principle  by  which  they  appear  mainly  to  have  been 
guided  in  coming  to  their  conclusions  was  that  of  grouping 
together  such  projects  as  either  were  or  had  the  appearance 
of  being  competing  inter  se,  or  that  were  intended  to  tra- 
verse the  same  district,  and  consequently  to  form  members 
of  one  entire  system  of  railway  communication  for  those  dis- 
tricts. In  one  case,  where  several  railways  were  intended 
to  have  a  common  terminus,  but  were  referred  by  the  Clas- 
sification Committee  to  different  committees,  (e)  great  diffi- 
culty arose  in  consequence,  each  committee  being  unable  to 
make  a  final  adjustment  of  tlie  question  of  the  common  ter- 
minus, which  was  finally  necessitated  to  be  reserved. 

Where  a  bill  had  been  included  by  the  Classification 
Committee  in  a  particular  group,  it  was  not  competent  for 
the  committee  on  that  group  to  withdraw  such  bill  from  it, 
but  there  must  have  been  an  application  for  that  purpose  to 
the  house.  (J') 

(e)    Committees  on  groups  (DD),  (EF),  and  (FF). 
(/)  See  App.  II.  ante,  pp.  ccxxi.  ccxxii. 


cclxxxiv  Apfendix. 

11.  Committee  on  Bill. 

(1.)  Constitution  of  Committee. 

These  committees  were  composed  of  a  chairman  and  four 
members,  appointed  by  the  Committee  of  Selection,  (g) 

As  long  as  three  members  were  present  they  might  pro- 
ceed, hut  not  with  a  less  number,  unless  by  special  leave  of 
the  house,  {h) 

Each  member  of  the  committee,  before  he  was  entitled 
to  attend  and  vote  on  such  committee,  was  obliged  to  sigir 
a  declaration  that  his  constituents  had  no  local  interest,  and 
that  he  himself  had  no  personal  interest  for  or  against  any 
bill  or  project  referred  to  him.  No  such  committee  could 
proceed  to  business  until  the  whole  of  the  members  thereof 
had  signed  such  declaration,  (i) 

(2.)  Of  the  Time  of  Meeting. 

The  time  of  the  first  meeting  of  the  committee  rested 
with  the  Committee  of  Selection,  who  might  appoint  any  day 
they  thought  proper  (subject  to  the  order  (/c)  that  there 
should  be  seven  clear  days  between  the  second  reading  of 
every  private  bill  and  the  sitting  of  the  committee  there- 
upon,) and  provided  that  the  Classification  Committee  had 
reported  on  such  bill.  (/) 

Neither  could  the  Committee  of  Selection  appoint  an 
earlier  day  for  the  first  meeting  of  the  committee  on  any 
group  of  bills  than  the  twenty-sixth  day  after  the  presenta- 
tion to  tlie  house  of  the  reports  of  the  Board  of  Trade  on 
all  railway  projects  included  in  such  group,  unless  all  the 
petitions  for  bills  relating  to  such  projects  should  have  been 
sooner  presented.  (/») 

(3.)  Preliminary  Steps  to  First  Meeting.(n) 

The  agent  for  the  bill  must  give,  at  the  Private  Bill 
Office,  seven  clear  days'  notice  in  writing  of  the  daj*  and 
hour  of  the  first  meeting  of  the  committee,  else  the  pro- 
ceedings of  the  committee  will  be  void,  (o)     He  must  also 

(g)  See  4th  resolution,  ante,  p.  cclxxxi. 
(h)  See  15th  resolution,  ante,  p.  cclxxxii. 
(i)    See  5th  resolution,  ante,  p.  cclxxxi. 
(k)  C.  S.  O.  117. 

(/)    See  6th  resolution,  ante,  p.  cclxxxi. 
(m)  See  7th  resolution,  ib. 
(«)  C.S.  O.  il7. 
(o)   C.  S,  O.  135. 


Parliamentary  Practice.  cclxxxv 

deposit  there,  one  clear  day  before  the  meeting  of  the  com- 
mittee, a  filled  up  bill,  signed  by  himself,  as  it  is  to  be 
submitted  to  the  committee,  to  a  copy  of  which  all  parties 
are  entitled  on  payment  of  the  charges  for  making  out  the 
amendments,  (p) 

The  agent  must  also  have  prepared  for  the  committee  a 
printed  bill,  with  all  the  proposed  amendments  written  in 
the  margin,  and  all  the  proposed  new  clauses  written  on 
separate  sheets  of  paper.  Upon  this  bill  are  written  all  the 
amendments  proposed  to  be  made  by  the  committee;  it  is 
called  the  committee  bill.  (9) 

Copies  of  the  printed  bill,  interleaved  with  blank  paper, 
must  be  deposited  in  the  Private  Bill  Office  previous  to  the 
meeting  of  the  committee,  (r) 

If  it  is  desired,  the  first  sitting  may,  with  the  sanction  of 
the  Committee  of  Selection,  be  postponed ;  but  in  such  case 
notice  in  writing  must  be  given  by  the  clerk  to  the  Com- 
mittee of  Selection,  at  the  Private  Bill  Office,  on  the  day  of 
the  postponement,  (s) 

(4.)  The  Powers,  Functions,  ^-c.  of  the  Committee,  and  of 
the  Chairman  in  particular. 

If  any  report  made  under  the  authority  of  the  Board  of 
Trade  upon  any  bill,  or  the  objects  thereof,  be  laid  before 
the  house,  such  report  is  referred  to  the  committee  on  the 
bill.  (0 

Petitions  praying  to  be  heard  against  a  bill  are  usually 
referred  to  the  committee,  but  a  petition  against  the  bill 
generally  is  regarded  as  an  ordinary  petition,  and  will  not 
be  referred.  Sometimes  the  house  orders  the  committee  to 
hear  parties  conditionally  in  case  certain  clauses  should  be 
proposed,  {u)  Every  petition,  unless  the  subject-matter  of 
complaint  have  arisen  during  the  progress  of  the  bill  before 
the  committee,  must  be  presented  three  clear  days  before  the 
day  appointed  for  the  first  meeting  of  the  committee,  other- 
wise it  will  not  be  heard  without  a  special  instruction  from 
the  house,  {v)  The  house  will  not  receive  a  petition  com- 
plaining solely  of  a  non-compliance  with  the  standing  orders 

(p)  C.  S.  0.  136. 
{q)  Lumley,  Pari.  Pr.  119. 
(r)  lb. 

(«)  C.  S  0.56.  137. 

(()  lb.  117  a.  As  to  reports  of  Board  of  Trade,  see  post, 
App.V. 

(m)  May  on  Pari.  413. 
{y)  C.  S.  O.  67. 


cclxxxvi  Appendix. 

after  the  second  reading,  except  where  it  relates  to  such  as 
must  be  necessarily  taken  into  consideration  by  the  committee 
on  the  bill,  (x)  Neither  will  any  petition,  though  referred 
to  the  committee,  be  taken  into  consideration  by  them 
unless  it  distinctly  specifies  the  grounds  of  objection,  and 
then  the  petitioners  will  only  be  heard  on  such  grounds  so 
stated.  If  inaccurately  specified  in  the  opinion  of  the  com- 
mittee, they  may  direct  a  more  specific  statement  (j/) 
in  writing  to  be  given  in  to  them,  but  limited  to  such 
grounds  so  inaccurately  specified,  (z)  Every  petition  pre- 
sented to  the  house  relating  to  any  private  bill  before  the 
house  must  have  the  name  or  short  title  by  which  such  bill 
is  entered  in  the  votes  written  on  it  at  the  beginning  thereof, 
and  this,  whether  such  petition  be  in  favour  or  against  the 
bill,  or  relating  to  the  non-compliance  with  the  standing 
orders,  (a) 

The  committee  are  to  see  that  the  provisiims  required  by 
the  standing  orders  are  inserted  in  the  bill.  (6)  Indeed, 
the  promoters  should  and  generally  do  insert  these  provi- 
sions in  the  original  draft ;  if  omitted,  the  committee  order 
their  insertion.  Supposing  the  bill  to  incorporate  the  three 
consolidation  acts,  the  insertion  in  such  bill  of  the  provi- 
sions which  are  embraced  by  those  acts  becomes  of  course 
unnecessary. 

The  committee  are  not  competent  to  examine  into  the 
compliance  with  such  standing  orders  as  are  directed  to  be 
proved  before  the  committee  on  petitions  for  private  bills, 
unless  by  special  order  of  the  house,  (c) 

The  principal  matters  to  be  investigated  by  the  committee 
are  pointed  out  by  the  standing  orders,  (d) 

It  is  competent  for  the  committee  on  a  railway  bill, 
upon  the  report  of  the  officer  of  the  railway  department  of 
the  Board  of  Trade  to  that  effect,  to  recommend  that  in  the 
alteration  of  the  level  of  roads  steeper  ascents  than  are  spe- 
cified in  the  standing  orders  be  allowed,  or  to  report  that  a 

(i)  C.  S.  0.  111. 

<2/)  C.  S.  O.  66. 

(0  lb. 

(a)  C.S.  O.  Ill  a. 

(6)  C.  .S.  O.  76,  77,  84,  85,  86,  88  ;  see  ante,  pp.  cclxiv— 
cclxviii.,  where  see  also  how  far  these  provisions  are  embraced 
by  the  three  consolidation  acts  of  the  session  of  1845. 

(c)  C.  S.  O.  72  ;  as  to  proof  of  compliance  with  standing 
orders,  see  post,  Sect.  V.  Also  see  ante,  p.  ccxxvi.  as  to  what 
held  not  to  be  a  standing  order  objection,  and  post,  Sect.  VI. 

(d)  See  post,  Sect.  V. 


Parliamentary  Practice.  cclxxxvii 

railway  should  be  made  across  a  road  on  the  level.  In  any 
such  case  they  are  to  report  the  reasons  and  facts  upon 
which  such  opinion  is  founded.  (/) 

The  committee  have  power  to  alter  the  plan  deposited  in 
the  Private  Bill  Office,  (g) 

It  is  not  competent  for  the  committee  to  sanction  alter- 
ations in  the  project  before  them  which  are  not  within 
the  order  of  leave  nor  in  compliance  with  the  standing 
orders.  Accordingly,  where  it  is  sought  by  the  promo- 
ters of  the  bill  to  introduce  alterations  in  their  scheme 
■which  are  beyond  the  above  limitations,  the  only  course  for 
them  to  pursue  is  to  present  a  petition  to  the  house,  stating 
specifically  what  it  is  they  desire,  and  then  go  again  before 
the  standing  orders  committee.  If  their  report  is  in  favour 
of  the  application,  it  is  then  competent  for  the  committee 
on  the  bill  to  take  the  proposed  alterations  into  their  con- 
sideration. 

If  the  report  of  the  standing  orders  committee  is  against 
granting  the  desired  leave,  that  is  fatal  to  the  entire  scheme, 
at  least  where  the  proposed  alteration  is  essential  to  its  suc- 
cess ;  or  if  it  extend  only  to  a  part  of  the  promoters'  pro- 
ject, they  must  abandon  that  part.  Thus,  in  the  case  of  the 
South  Wales  Railway,  it  was  proposed  by  the  promoters  to 
cross  the  Severn  by  means  of  a  bridge  of  certain  dimen- 
sions. But  in  order  to  do  this  it  was  necessary  to  obtain 
the  consent  of  the  Admiralty  to  the  proposed  method  of 
crossing,  which  was  refused.  The  company,  upon  this,  de- 
termined upon  substituting  a  tunnel  under  in  lieu  of  a  bridge 
over  that  river,  and  accordingly  presented  a  petition  to  the 
house  for  leave  to  alter  their  plans  accordingly,  which  peti- 
tion was  referred  by  the  house  to  the  standing  orders  com- 
mittee. The  report  of  the  committee  being  unfavourable 
to  the  petitioners,  they  decided  on  abandoning  the  part  of 
their  project  which  involved  the  crossing  of  the  river — 
group  (P).  And  the  same  thing  took  place  in  the  case  of 
the  Hereford  and  Monmouth  Raihvaj — group  (P). 

If  it  be  proposed  to  insert  in  the  bill  any  new  or  addi- 
tional matter  foreign  to  the  bill,  or  not  within  tjic  scope  of 
its  title,  or  to  leave  out  of  tlic  bill  any  subject-matter 
expressed  in  its  title,  the  committee  must  be  expressly 
empowered  to  make  provisions  for  all  such  purposes  by 
previous  instructions  from  the  house.     If  it  is  proposed  to 

(/)  C.  S.  O.  85,86. 

Ig)  Lumley,  Pari.  Tract,  p.  128. 


cclxxxviii  Appendix, 

divide  one  bill  into  two,  an  instruction  must  be  given  for 
that  purpose  to  the  committee  on  the  bill,  it  not  being 
within  their  ordinary  power,  {h) 

If  it  be  intended  to  consolidate  two  bills,  both  of  them 
must  be  first  committed  to  the  same  committee,  and  then 
an  instruction  be  given  for  uniting  the  two  into  one.  These 
instructions  should  be  obtained  after  the  bill  has  been  com- 
mitted and  before  the  committee  sit,  or  before  they  proceed 
on  that  part  of  the  bill  which  will  be  affected  by  the  in- 
struction, (j) 

The  course  is,  in  such  cases,  to  procure  some  member  to 
move  the  house  for  the  necessary  instructions,  {h) 

Adjournment.  The  committee  have  the  power  of  ad- 
journing to  a  future  day;  though  if  the  adjournment  be  too 
long,  the  house  will  interfere.  Notice  must  in  such  case 
be  given  by  the  committee  clerk  at  the  Private  Bill  Office 
of  the  day  and  hour  to  which  the  committee  is  adjourned,  {k) 

If  a  committee  adjourn  without  naming  another  day  for 
resuming  their  sittings,  or  from  the  absence  of  a  quorum  are 
unable  to  proceed  to  business  or  to  adjourn  to  a  future  day, 
&c.,  they  have  no  power  of  re-assembling,  until  they  are 
revived,  as  it  is  termed,  by  an  order  from  the  house.  {I) 

Witneaaes.  The  committees  upon  private  bills  have  no 
power  of  sending  for  persons,  papers,  and  records.  The 
parties  are  generally  able  to  secure  the  attendance  of  their 
■witnesses,  without  ap])lying  to  the  committee ;  but  when 
they  desire  to  compel  the  attendance  of  an  adverse  or  un- 
willing witness,  they  should  apply  to  the  committee,  who 
when  satisfied  that  due  diligence  has  been  used,  and  that 
the  witness  is  material  to  the  inquiry,  direct  a  special  report 
to  be  made  to  the  house,  upon  which  an  order  is  made  by 
the  house  to  oblige  the  witness  to  attend  and  give  evidence 
before  the  committee,  (/n) 

In  one  case  the  production  of  documents  in  the  nature  of 
private  documents  was  not  enforced  before  a  committee. 
The  Mullingar  Company,  and  the  Grand  Junction  Canal, 
had  at  one  time  combined  to  oppose  the  Dublin  and  Gal- 
way  Line.  For  the  purpose  of  this  opposition,  certain 
plans,   &c.   had  been   prepared  by   the   engineers  of  the 

(h)  For  an  instance  where  this  was  done,  see  case  of  London 
and  York,  ante,  p.  ccxxxviii. 

(i)  Bramwell  on  Bills,  96,97,  ed.  1837. 

(k)  C.S.  O.  138. 

(I)    May  on  Pari.  430. 

(m)  Ibid.  428. 


Parliamentary  Practice.  cclxxxix 

two  companies,  and  worked  on  in  common.  These  plans, 
&c.,  by  some  accident,  remained  in  the  hands  of  the  Mul- 
lingar  Company's  agents;  the  latter  company,  having  aban- 
doned their  opposition  to  the  Dublin  and  Galway  Line,  the 
Canal  Company,  who  wanted  to  get  at  these  documents  for 
the  purposes  of  their  continued  opposition,  called  on  the 
secretary  of  the  Mullingar  Line  to  produce  them  before  the 
committee,  which  he  objected  to  do.  Mr.  Rowe,  on  behalf 
of  the  Canal  Company,  argued  that  they  were  not  private 
documents.  The  committee,  after  deliberation,  intimated 
to  the  parties  that  they  considered  the  papers  asked  for  in 
the  light  of  private  documents,  over  wliich  the  committee 
had  no  control.  There  was  a  reference  to  the  Speaker,  but 
no  further  steps  were  taken  in  the  matter,  (o) 

The  committee  must  report  the  bill  to  the  house  whether 
they  have  or  not  agreed  to  the  preamble  or  gone  through  the 
sevei'al  clauses  or  any  of  them ;  and  when  any  alteration 
has  been  made  in  the  preamble  of  the  bill,  such  alteration, 
together  with  the  ground  of  making  it,  is  to  be  specially 
stated  in  the  report,  (p) 

Duties  of  chairman  of  committee.  There  are  certain 
duties  devolving  more  particularly  on  the  chairman  of  a 
committee  both  during  the  progress  of  the  bill  through  the 
committee,  and  also  in  relation  to  the  report  thereon. 
Every  plan  and  book  of  reference  produced  in  evidence 
before  the  committee  must  be  signed  by  the  chairman  with 
his  name  at  full  length,  and  he  must  also  mark  every  altera- 
tion with  his  initials,  and  every  such  plan  and  book  of  re- 
ference must  be  deposited  in  the  Private  Bill  Office  ((/). 
The  chairman  must  sign  with  his  name  at  length  a  printed 
copy  of  the  bill,  to  be  called  the  committee  bill,  on  which 
the  amendments  are  to  be  fairly  written,  and  mark  with  his 
initials  the  several  clauses  added  in  committee,  (r) 

The  chairman  must  likewise  report  to  the  house  that  the 
allegations  of  the  bill  have  been  examined;  and  whether 
the  parties  concerned  have  given  their  consent  (where  such 
consent  is  required  by  the  Standing  Orders)  to  the  satis- 
faction of  the  committee,  (s) 

(o)  Case  of  Dublin  and  Galway  Line,  Group  (Z),  Supp.  to 
Votes  of  Commons,  1845,  p.  1 102. 
(p)  S.  0.82. 
(q)  S.  O.  79. 
(r)  S.  O.  80. 
(s)  S.  0.81. 

N  W 


ccxc  appendix. 

(5.)  General  Proceedings  of  Committees. 

These  are  regulated  partly  by  the  usage  of  parliament  and 
partly  by  the  Standing  Orders,  &c. 

Every  question  is  put  by  the  chairman  and  determined 
by  a  majority  of  the  committee ;  the  chairman,  where  the 
numbers  are  even,  having  a  casting  vote.  During  the  ad- 
dress of  counsel  and  the  examination  of  witnesses  the  room 
is  an  open  court,  and  it  is  only  closed  during  the  delibera- 
tions of  the  committee,  at  the  close  of  which  the  parties  are 
readmitted  to  hear  and  be  acquainted  with  the  decision  by 
the  chairman,  if  it  concern  them,  (u)  The  committee  clerk 
takes  down  the  names  of  the  members  present,  and  enters 
them  with  their  votes  on  division  in  the  minutes,  (a) 

Upon  the  first  meeting  of  the  committee,  the  parties  are 
called  in.  The  counsel  in  support  of  the  bill  appear  before 
the  committee ;  the  petitions  against  the  bill  are  read  by  the 
committee  clerk,  and  the  counsel  or  agent  in  support  of 
each  present  themselves.  The  agent  must  deliver  to  the 
committee  clerk  a  certificate,  signed  by  one  of  the  clerks  in 
the  Private  Bill  Office,  that  he  has  entered  his  name  as 
agent  for  each  such  petition,  without  which  the  committee 
cannot  allow  the  petitioner  to  be  heard,  {y) 

If  no  parties  counsel  or  agent  appear  when  a  petition  is 
read,  the  opposition  on  the  part  of  the  petitioners  is  con- 
sidered as  abandoned ;  and  unless  they  state  their  intention 
to  oppose  the  bill  before  the  case  is  opened,  they  are  not 
afterwards  entitled  to  be  heard  without  special  leave  from 
the  committee,  (z) 

Order  of  precedence.  The  parties  now  being  before  the 
committee,  the  first  question  to  be  decided,  under  the 
grouping  system  of  the  last  year,  was,  as  to  the  order 
of  precedence.  This  was  a  matter  resting  entirely  in  the 
discretion  of  the  committee  ;  as  far,  however,  as  any  general 
rule  can  be  laid  down  on  this  subject,  the  different  com- 
mittees would  appear  in  the  main  to  have  followed  the  sug- 
gestions drawn  up  for  their  consideration  by  the  chairmen 
of  committees.  These  suggestions,  (a)  so  far  as  relates  to  the 
question  of  order,  were  as  follows : 

1.  If  parties  agree  as  to  the  order  of  precedence  in  which 

(w)  May  on  Pari.  423. 
(x)  S.O.  71. 
(y)  Lumley,  125. 
(s)  May  ou  Pari.  424. 

(a)  For  suggestions  issued  in  the  present  session,  see  post, 
Sect.  X. 


Parliamentary  Practice.  ccxci 

bills  or  projects  referred  to  tlie  same  committee  shall  be 
taken,  the  committee  will  adopt  their  agreement. 

2.  If  parties  do  not  agree,  the  committee  will  decide  the 
order  of  precedence,  without  hearing  arguments  from  coun- 
sel. 

3.  In  the  latter  case,  such  bills  or  projects  in  each  group 
as  are  unopposed  will  be  first  taken  into  consideration. 

4.  Such  bills  or  projects  in  each  group  as  are  opposed, 
but  not  by  competing  lines,  will  be  next  taken  into  con- 
sideration. 

5.  With  respect  to  competing  lines,  the  committee  will 
subdivide  if  necessary  the  bills  or  projects  in  each  group,  so 
as  to  distribute  into  separate  classes  the  bills  or  projects  for 
such  lines  as  compete  inter  se. 

6.  That  as  a  general  rule,  in  cases  of  non-competing  lines, 
the  bill  or  project  first  read  twice,  will  be  first  proceeded 
with  by  the  committee. 

7.  That  with  regard  to  the  separate  classes  into  which 
competing  lines  have  been  distributed,  the  committee  must 
exercise  its  discretion  according  to  the  circumstances  of  the 
case,  in  determining  the  order  of  precedence  in  which  such 
classes  are  to  be  taken.  That  with  regard  to  the  bills  or 
projects  in  each  class,  those  which  have  been  read  a  second 
time  shall  be  taken  first,  and  in  the  order  of  such  second 
reading ;  and  that  the  bills  or  projects  which  have  not  been 
read  a  second  time,  shall  be  next  taken  in  the  order  in 
which  the  petitions  for  such  bills  or  projects  have  been  pre- 
sented to  the  house. 

In  some  instances,  the  committee  (in  the  absence  of  any 
agreement  on  the  subject  between  the  parties)  adopted  a 
territorial  arrangement  as  a  guide  to  determining  the  order 
of  precedence  of  different  sub-groups  of  competing  lines. 
Thus  the  committee  on  group  (DD)  determined  to  proceed 
first  with  the  lines  north  of  the  Edinburgh  and  Glasgow,  one 
of  the  groups  submitted  to  them. 

It  was  competent  for  the  committee,  after  they  had  de- 
termined on  the  order  of  precedence,  again  to  change  that 
order,  and  they  were  in  some  instances  accordingly  induced 
to  do  so  on  the  application  of  counsel.  So  where  tiiey 
had  found  it  necessary  to  distribute  tlie  bills  submitted  to 
them  into  separate  classes,  they  might  afterwards  shift  a 
bill  from  one  class  into  another,  if  sufficient  reason  were 
shown  them  for  so  doing,  (b) 

1st.  Unopposed  bill.  The  order  of  precedence  being  deter- 

(6)  See  ante,  p.  ccxviii. 
N  N  2 


ccxcii  Appendix. 

mined,  suppose  (as  was  usually  the  case)  the  case  of  an  un- 
opposed line  to  be  first  brought  before  the  committee. 

There  being  no  opponents,  the  promoters  had  only  to 
satisfy  the  committee  of  the  propriety  of  the  several  pro- 
visions of  the  bill,  that  the  clauses  required  by  the  standing 
orders  had  been  inserted  therein,  and  that  such  standing  or- 
ders as  must  be  proved  before  the  committee  had  been 
complied  with.  Where  it  is  proposed  to  make  extensive 
alterations  in  the  original  bill  anuexed  to  the  petition,  it  is 
liable  to  be  ordered  to  be  withdrawn  on  the  report  of  the 
chairman,  (d) 

2ndly.  Opposed  bill.  Suppose  next  the  case  of  a  line 
opposed  by  landowners,  &c.,  but  not  by  a  rival  or  competing 
line.  The  practice  in  regard  of  such  hues  was  somewhat 
modified  during  the  last  session  by  the  suggestions  already 
alluded  to,  and  which,  so  far  as  related  to  such  hnes,  were 
as  follows : 

That  in  a  non-competing  line,  the  counsel  in  opening  the 
case  is  to  be  restricted  to  a  statement  of  facts.  The  counsel 
for  the  opponents  may  either  address  the  committee  previous 
to  offering  evidence,  or  afterwards,  but  not  both ;  and  the 
counsel  for  the  bill  or  project  may  reply. 

Suppose  then  the  case  of  a  non-competing  line  before  the 
committee,  the  senior  counsel  for  the  bill  opens  the  case 
for  the  promoters,  the  character  of  which  depends  upon 
the  parts  of  the  bill  to  which  objections  are  taken  by  the 
opposers.  The  preamble  is  always  first  considered,  and 
if  the  preamble  be  itself  opposed,  the  counsel  for  the  bill 
addresses  the  committee  more  particularly  as  to  its  general 
expediency,  and  calls  witnesses  in  confirmation  of  the 
allegations  contained  in  the  preamble.  This  is  also  the 
proper  stage  for  producing  evidence  to  satisfy  the  committee 
upon  various  points  on  which  the  standing  orders  require 
them  to  report  to  the  house.  The  witnesses  may  be  cross- 
examined  by  the  counsel  who  appear  to  support  petitions 
against  the  preamble,  but  not  by  the  counsel  for  parties 
whose  petitions  complain,  not  of  the  preamble  but  of  par- 
ticular provisions  in  the  bill.  Upon  the  cross-examination, 
the  witnesses  may  be  re-examined  by  the  counsel  for  the 
bill,  (e) 

The  committee,  who  have  all  the  petitions  before  them, 
are  to  decide  in  each  case  whether  counsel  are  entitled  to  be 
heard  against  the  preamble. 

(<f)  May  on  Pari.  415. 
(e)  Ibid.  424. 


Parliamentary  Practice.  ccxciii 

The  time  for  objecting  to  the  right  of  a  petitioner  against 
the  bill  to  be  heard  before  the  committee,  is  either  upon  the 
entry  of  the  appearance  of  such  petitioner,  or  when  he  ap- 
plies to  cross-examine  any  one  of  the  witnesses  called  for 
the  bill,  or  to  address  the  committee  on  his  petition.  (/) 

The  grounds  of  objection  thereto  on  the  part  of  the  pro- 
moters are  usually  twofold,  the  limited  nature  of  the  party's 
interest,  and  the  informality  of  the  petition.  (^).  Thout^h 
the  petition  state  specially  the  desire  of  the  parties  by 
•whom  it  is  preferred  to  be  heard  against  the  preamble, 
which  it  is  always  desirable  it  should  do  where  the  pe- 
titioners object  to  the  entire  bill,  yet  that  will  not  entitle 
them  to  be  heard,  if  the  committee  determine  that  they 
have  not  a  sufficient  interest  to  give  them  a  locus  stujidi  {h) 
before  the  committee,  or  that  the  petition  is  informal,  (i) 

The  counsel  who  objects  to  a  party  being  heard,  is  en- 
titled to  support  his  objection  by  a  speech,  and  is  answered 
by  the  counsel  claiming  to  be  heard,  to  whom  he  may  re- 
ply. Sometimes  the  committee  decide  without  having 
heard  counsel,  and  are  afterwards  induced  to  hear  them 
upon  that  decision  with  a  view  to  its  re-consideration,  (j) 

In  pursuance  of  the  suggestions  just  considered,  counsel., 
during  the  last  session,  where  they  were  allowed  to  be  heard 
against  the  preamble,  were  in  general  restricted  to  one  ad- 
dress to  the  committee,  which  they  might  make  either  before 
or  after  offering  their  evidence.  Where  the  former  course 
was  preferred,  one  of  the  counsel  opposing  the  bill  opened 
the  case  for  the  petitioners ;  witnesses  were  then  called  and 
examined  in  support  of  the  petition,  cross-examined  by  the 
counsel  for  the  bill,  and  re-examined  by  the  counsel  for  the 
petitioners,  and  the  leading  counsel  for  the  bill  then  replied 
on  the  whole  case. 

Where  the  latter  course  was  adopted,  the  only  difference 
was,  that  the  address  of  counsel  followed  instead  of  preceded 
his  evidence. 

Where  no  witnesses  were  called  for  the  petitioners,  the 
counsel  for  the  bill  had,  however,  no  right  to  reply,  unless 
new  matter  (such  as  acts  of  parliament  or  precedents)  iiad 

(/)  Ridd.  Pari.  Pract.  p.  06. 
Ig)  See  Supp.  to  Votes,  1843.  p.  131 . 

(h)  See  question  of  locus  standi  under  grouping  system  of 
1845,  considered,  post,  p.  cccxvii. 

{i)  May  on  Pari.  425,  in  the  Glasgow  Gas  Bill,  1843. 
(J)  See  Supp.  to  Votes,  1843,  p.  131  ;   May  on  Pari.  425. 


ccxciv  Appendix. 

been  introduced  by  tbe  opposite  counsel,  and  in  tbis  case 
his  reply  must  have  been  confined  to  sucb  new  topics,  (k) 

When  the  arguments,  &:c.  upon  the  preamble  have  been 
heard,  the  room  is  cleared  and  the  question  put,  "  That  the 
preamble  has  been  proved."  If  it  be  carried  in  the  negative, 
the  committee  report  to  that  effect  to  the  house,  without 
stating  reasons ;  if  in  the  affirmative,  the  parties  are  again 
called  in,  and  the  committee  proceed  to  go  through  the  bill, 
clause  by  clause,  and  to  fill  up  the  blanks. 

Preamble.  Subject  to  certain  limitations,  the  committee 
may  make  alterations  in  the  preamble.  Where  therefore  the 
committee  are  favourably  disposed  towards  a  project  before 
them  in  part  only  and  not  altogether,  it  is  competent  for 
them  to  amend  the  preamble  by  striking  out  such  portions 
thereof  as  they  think  ought  not  to  pass,  and  then  to  report 
in  favour  of  the  preamble  as  so  amended;  provided,  that  is 
to  say,  the  essential  character  of  the  bill  is  not  thereby 
altered. 

So  likewise  the  promoters  of  the  bill  may  withdraw  any 
part  of  the  preamble  without  evidence  being  required  of  the 
truth  of  the  part  withdrawn,  provided  the  portion  withdrawn 
be  unnecessary,  and  do  not  involve  any  fundamental  prin- 
ciple on  which  the  bill  as  originally  presented  was  founded, 
and  that  sufficient  be  retained  in  the  preamble  to  show  the 
expediency  of  the  measure  so  abridged,  and  to  justify  the 
provisions  of  the  bill ;  and  if  it  be  not  one  on  the  credit  of 
which  the  house  may  be  supposed  originally  to  have  granted 
leave  to  bring  in  the  bill.  (/) 

Clauses.  After  finding  the  preamble  proved  either  wholly 
or  in  part,  the  committee,  as  has  been  before  observed, 
proceed  to  go  through  the  bill  clause  by  clause,  and  to  fill 
up  the  blanks.  In  pursuance  of  a  resolution  of  the  present 
session  the  committee  now  fix  the  tolls  and  determine  the 
maximum  rates  of  charge  for  the  conveyance  of  passengers, 
goods,  &c.,  which  are  inserted  in  the  bill ;  or  if  for  anj' 
reason  they  deem  it  inexpedient  to  fix  and  determine  such 
tolls,  &c.,  then  they  are  required  by  the  above  mentioned 
resolution  to  report  specially  to  the  house  their  reason  for 
such  omission,  and  such  report  is  to  accompany  their  report 
on  the  bill. 

(k)  May  on  Pari.  425. 

(/)  Luml.  Pari.  Pract.  p.  126.  See  the  case  of  the  Southwark 
Market  bill  and  of  the  Lough  Swilley  Canal,  6iC.,  and  Drainage 
petition  quoted  in  notes,  ibid.  p.  127. 


Parliamentary  Practice.  ccxcv 

It  is  competent  for  the  committee  to  authorize  the  pro- 
moters of  a  bill  to  increase  their  capital  beyond  the  amount 
of  their  original  estimates,  provided  that  it  be  necessary  for 
properly  attaining  the  object  of  their  act,  and  provided  that 
the  increase  be  not  carried  to  such  an  extent,  that  {m)  the 
amount  subscribed  does  not  equal  three-fourths  of  the  capital 
so  increased. (?i) 

It  is  otherwise,  it  seems,  where  the  object  of  such  in- 
crease of  capital  cannot  be  proved  to  be  for  the  objects  of 
the  act,  as  for  instance,  to  enable  the  promoters  to  buy  off  the 
opposition  of  a  competing  line,  and  the  like. 

In  such  case  the  promoters  must,  it  seems,  present  a 
petition  to  the  house,  specifying  what  it  is  they  desire,  and 
then  go  again  before  the  standing  orders  committee. 

Where  petitions  have  been  presented  against  a  clause  or 
proposing  amendments,  this  is  the  time  for  the  parties  being 
heard  in  support  of  their  objections  or  amendments  as  they 
arise ;  but  clauses  may  be  postponed  and  considered  at  a 
later  period  in  the  proceedings,  if  the  committee  think  fit. 
When  all  the  clauses  of  the  bill  have  been  agreed  on,  new 
clauses  may  be  offered  either  by  members  of  the  committee 
or  by  the  parties  ;  but  the  committee  cannot  admit  clauses 
or  amendments  which  are  not  within  the  order  of  leave,  or 
■which  are  not  authorized  by  a  previous  compliance  with  the 
standing  orders,  (o) 

3rdly.  Course  of  proceedings  in  case  of  competing  lines. 
Upon  this  subject  it  is  impossible  to  lay  down  any  general 
rule,  as  each  committee  modified  its  practice  to  suit  the  con- 
venience of  the  parties,  or  the  particular  circumstances  of  the 
case.  In  the  main,  however,  the  committees  would  appear 
to  have  followed  the  course  marked  out  in  the  suggestions 
for  the  consideration  of  the  select  committees,  though  with 
some  variations. 

The  following  was  the  suggestion  relating  to  this  sub- 
ject : — 

8.  That  in  the  cases  of  bills  or  projects  for  lines  of  rail- 
way competing  inter  se,  the  following  course  is  proposed  to 
be  adopted : — 

Suppose  a  case  of  four  competing  bills  or  projects : 

No.  1.  The  counsel  for  the  promoters  opens  the  case  by 
a  statement  of  facts  merely,  and  then  produces  evidence. 

(to)  So  held  in  Group  (V),  Great  Grimsby  and  Sheffield 
Railway. 

(n  Ante,  p.  ccxxx. 

(o)  May  on  Pari.  425,  426. 


ccxcvi  Appendix. 

Nos.  2,  3,  4.  Landowners  and  other  opponents  tLen 
cross-examine. 

No.  1.  Re-examines. 

Nos.  2,  3,  and  4.  Landowners  and  other  opponents  then 
offer  consecutively  positive  evidence  in  opposition  to  No.  1, 
on  the  merits  of  his  case. 

No.  ].  Cross-examines. 

Nos.  2,  3,  and  4.  Landowners  and  other  opponents  then 
re-examine. 

Same  process  with  2,  3,  and  4,  in  rotation,  and  4,  3,  2, 
and  1,  reply. 

Suppose,  accordingly,  a  case  where  there  were  three  com- 
peting lines,  Nos.  1,  2  and  3.  First  of  all,  the  counsel  for 
No.  1  stated  his  case,  and  then  proceeded  to  call  evidence, 
blending,  to  a  certain  extent,  the  evidence  in  support  of  his 
own  case  and  that  in  opposition  to  the  competing  lines  ;  the 
counsel  for  the  landowners,  &c.  opposing  No.  1  and  for 
Nos.  2  and  3  having  the  right  of(p)  cross-examining  all 
witnesses  so  called  by  No.  1,  and  the  counsel  for  No.  1  of 
re-examining  them.  At  the  close  of  No.  I's  case,  the  land- 
owners, &c.  opposing  No.  1  were  next  heard,  the  counsel 
for  each  landowner,  &c.  having  the  option  of  making  his 
speech  either  at  the  opening  or  close  of  his  case,  but  not 
at  both. 

Li  the  case,  however,  of  the  Wakefield,  Pontefract  and 
Goole  Railway  committee  on  group  (W),  where  an  oppos- 
ing landowner  had  set  up  a  case  of  an  independent  line,  in 
answer  to  which  the  promoters  of  the  bill  adduced  fresh 
evidence,  the  counsel  for  the  landowner  was  allowed  the 
right  of  reply  to  the  additional  portion  of  evidence  adduced 
by  the  promoters  of  the  bill,  {q) 

No.  2  then  went  into  his  case,  blending,  as  No.  1  had 
done  before,  both  his  (No.  2's)  evidence  in  support  of  his 
own  line,  and  that  in  opposition  to  the  other  competing 
lines.  In  some  cases  the  counsel  for  No.  2  was  not  allowed 
more  than  one  speech  in  favour  of  his  own  line,  which  he 
bad  the  option  of  making  either  at  the  opening  or  close  of 
his  own  case,  or  at  the  close  of  the  case  of  No.  3. 

At  the  close  of  the  case  of  No.  2,  the  landowners,  &c. 
opposing  that  scheme  were  heard  in  like  manner  and  under 
like  regulations  as  in  the  case  of  No.  1  ;  then  No.  1  was 
allowed  to  adduce  rebutting  evidence  in  answer  to  the  case 

(p)  As  to  the  right  of  cross-examination,  see  ante,  p.  ccxxi. 
(g)  See  Supp.  to  Votes,  1462. 


Parliavientary  Practice.  ccxcvii 

of  No.  2,  supposing,  that  is  to  say,  that  the  latter  had  opened 
matter  not  previously  opened  by  No.  1,  which  the  latter 
might  again  meet,  under  similar  restrictions,  by  the  produc- 
tion of  additional  evidence. 

This  closed  the  case  of  No.  2,  when  the  case  of  No.  3  was 
heard  in  the  same  order;  Nos.  1  and  2  at  the  close  of  the 
case  of  the  landowners,  &c.  opposing  No.  3,  (where  new 
matter  had  been  opened  by  No.  3,)  being  allowed  to  ad- 
duce rebutting  evidence  to  meet  the  case  set  up  by  No.  3, 
in  answer  to  which  the  latter,  under  like  restrictions,  might 
adduce  fresh  evidence. 

At  the  close  of  the  case  of  No.  3  the  counsel  for  Nos.  3 
and  2  respectively  proceeded  to  sum  up  on  behalf  of  these 
schemes  against  their  antagonists,  and  then  No.  1  had  the 
general  right  of  reply,  and  the  committee  then  decided  on 
the  different  preambles.  If  all  were  negatived,  this  of  course 
terminated  the  proceedings;  if  not,  the  committee  proceeded 
to  deal  with  the  successful  bill  (for  in  general  more  than 
one  of  such  lines  could  not  of  course  receive  the  sanction  of 
the  committee)  in  the  same  manner,  as  has  been  just  shown, 
they  do  with  an  opposed  bill,  (r) 

The  above  rules  of  practice,  as  has  before  been  remarked, 
must  be  understood  as  subject  to  sundry  qualifications  and 
exceptions,  and  this  not  simply  in  their  minuter  details,  but 
even  in  regard  of  their  more  general  features.  For  in- 
stance, instead  of  blending  in  one  their  case  in  chief  and 
that  in  opposition,  a  competing  line  would  sometimes  keep 
them  distinct,  where  the  circumstances  of  the  case  required 
it.  Thus,  in  the  committee  on  group  (B),  the  Leeds  and 
West  Riding  line,  which  was  a  competing  line  with  the 
Huddersfield  and  Manchester  in  regard  of  a  small  portion 
of  their  line,  first  of  all  went  into  their  evidence  in  opposi- 
tion to  the  latter  line,  and  then  into  evidence  affirmative  of 
the  line  proposed  by  themselves,  between  Cooper's  Bridge 
and  Huddersfield,  being  the  portion  of  their  scheme  com- 
peting with  the  Huddersfield  and  Mancliester,  and  last  of 
all  opened  their  case  generally  against  the  otiier  competing 
lines. 

So  likewise  a  committee  sometimes  would  hear  the  com- 
peting lines  throughout  before  entering  on  the  cases  of  the 
individual  opponents  of  any  of  such  lines. 

Or  again,  instead  of  suspending  their  decision  till  they 
had  heard  the  entire  case  of  the  various  competing  lines, 

()•)  See  ante,  p.  ccxciv. 

N  N  5 


ccxcviii  Appendix. 

they  would  decide  on  the  preamble  of  the  first  bill  brought 
before  them  immediatel}'  at  the  close  of  the  case  of  such  bill. 
The  committee  would  not,  in  general,  on  the  application 
of  a  competing  line,  interfere  with  the  manner  in  which 
counsel  chose  to  shape  their  case,  but  left  it  to  their  own 
discretion,  (s) 

12.  Report. 

When  the  committee  have  gone  through  all  the  clauses 
and  amendments,  and  finally  settled  them,  they  proceed 
next  to  draw  up  their  report.  In  this  report  the  subjects 
to  which  their  attention  is  directed  by  the  standing  orders 
must  be  pai-ticularly  noticed.  (^) 

Sometimes,  as  in  the  case  of  the  Brighton  competing 
lines,  the  committee,  by  leave  or  instruction  of  the  house, 
report  specially. 

A  certain  time  is  generally  limited  for  the  making  of  the 
report,  but  it  may  be  extended  by  leave  of  the  house. 

The  report  being  made  out,  the  committee  clerk  delivers 
into  the  Private  Bill  Office  a  printed  copy  of  the  bill,  with 
the  written  amendments  made  by  the  committee,  and  with 
every  clause  added  by  the  committee  regularly  marked  in 
those  parts  of  the  bill  in  which  they  are  to  be  inserted.  (?/) 

In  conformity  with  this  copy,  the  bill  as  amended  must 
then  be  printed  at  the  expense  of  the  parties,  unless  the 
committee  report  the  amendments  to  be  merely  verbal  or 
literal  ( r) 

By  the  Speaker's  order,  two  copies  of  the  amended  printed 
bill  must  be  delivered  at  the  Private  Bill  Office  for  the  use 
of  the  Board  of  Trade.  ( ;/) 

One  cletir  day's  notice  in  writing  must  be  given  by  the 
agent  for  the  bill  at  the  Private  Bill  Office  of  the  day  pro- 
posed for  the  report,  {z)  Upon  the  day  so  fixed  the  report 
is  made  to  the  house  by  the  chairman  of  the  committee, 
and  is  ordered  to  lie  upon  the  table,  (a)  The  minutes  of 
the  committee  must  be  brought  up  and  laid  on  the  table, 

(s)  See  ante,  p.  ccxix. 
(f)  See  post,  p.  cccix,  et  seq. 
(«)  C.  S.  O.  140. 
(i)  C.S.  0.  120. 

(y)  Ridd.  Pari.  Pract.  103.     In  practice  this  is  not  generally 
done,  unless  required, 
(s)  C.  S.  O.  139. 
(a)  C.  S.  0.  118. 


Parliamentary  Practice.  ccxcix 

with  the  report.  (6)  If  it  is  intended  to  bring  up  any 
clause,  or  propose  any  amendment  on  the  report,  notice 
must  be  given  thereof  in  the  Private  Bill  Office  on  the  day 
previous,  (c)  Any  such  clause  or  amendment  is  referred 
to  the  Committee  on  Standing  Orders,  {d)  Every  such 
clause  is  required  to  be  printed,  and  when  any  clause  is 
proposed  to  be  amended  it  must  be  printed  in  extenso,  with 
every  addition  or  substitution  in  different  type,  and  the 
omissions  therefrom  included  in  brackets,  (e) 

It  is  the  duty  of  the  committee  to  report  whether  the 
proposed  clauses  or  amendments  are  of  such  a  nature  as 
ought  not  to  be  adopted  without  recommitting  the  bill,  or 
may  be  entertained  by  the  house  without  recurring  to  that 
proceeding,  or  ought  not  in  either  case  to  be  adopted  by 
the  house,  {f) 

When  thus  refened,  no  further  proceeding  can  be  tal<en 
in  regard  thereof  until  the  report  of  the  committee  has  been 
brought  up.  (g) 

When  bills  are  recommitted  they  are  referred  to  the  for- 
mer committee,  and  no  member  can  then  sit  unless  he  shall 
have  been  duly  qualified  to  serve  upon  the  original  com- 
mittee on  the  bill.  (A) 

The  committee  cannot  sit  unless  the  agent  has  given 
three  clear  days'  notice  in  writmg  at  the  Private  Bill  Office 
of  the  day  and  hour  appointed  for  their  meeting ;  (i)  and  a 
filled  up  bill  as  proposed  to  be  submitted  to  the  committee 
on  recommittal  must  be  deposited  in  the  Private  Bill 
Office  one  clear  day  before  the  meeting  of  the  committee 
thereon,  {k) 

Unless  the  bill  be  recommitted  by  the  house,  with  ex- 
press reference  to  particular  provisions  only,  the  whole  of  it 
is  open  to  reconsideration.  (/«) 

When  amendments  are  made  by  the  house  on  the  report, 
they  are  entered  by  one  of  the  clerks  in  the  Private  Bill 
OSice  upon  the  printed  copy,  as  amended  by  tiic  commit- 
tee. The  copy  so  amended  is  then  signed  by  the  clerk  and 
preserved  in  the  office.  (/) 

(fc)C.S.  0.83.  (.)C.S.  0.122. 

(c)  C.  S.  O.  141.  (/>)  May  on  Pari.  432. 

(d)C.S.  0.121.  (OC.S.  0.135. 

(e)  Ibid.  (^)  ^-  S-  O.  136. 

(/)C.S.0.48.  (OC.S.  0.143. 


ccc  Appendix. 

13.  Consideration  of  Report. 

Prelimimiry  steps. — In  the  interim  between  the  report 
being  laid  upon  the  table  and  taken  into  consideration,  a 
breviate  of  the  amendments  made  by  the  committee  is  pre- 
pared by  the  Speaker's  coimsel,  and,  when  printed,  sub- 
mitted to  the  chairman  of  the  Committee  of  Ways  and 
Means,  and  laid  upon  the  table  of  the  house  at  least  the 
day  previous  to  the  consideration  of  the  report.  (72) 

By  the  Speaker's  order,  two  copies  of  the  amended  printed 
breviate  must  be  delivered  at  the  Private  Bill  Office  for  the 
use  of  the  Board  of  Trade,  and  one  copy  of  the  amended 
breviate  must  be  delivered  at  the  Public  Bill  Office.  And 
three  clear  days,  at  least,  before  the  consideration  of  the 
report,  copies  of  the  amended  printed  bill  must  be  delivered 
to  the  doorkeepers  for  the  use  of  the  members  ;  (o)  and 
the  agent,  when  he  gives  notice  at  the  Private  Bill  Office  of 
the  day  for  the  consideration  of  the  report,  must  produce 
a  certificate  from  the  doorkeeper  of  the  delivery  of  copies 
of  the  amended  printed  bill  on  the  proper  day.  (q) 

The  agent  for  the  bill  must  give  one  day's  clear  notice  in 
writing  at  the  Private  Bill  Office  of  the  day  proposed  for 
the  consideration  of  the  repoi-t,  when  laid  upon  the  table,  (r) 
Whatever  further  amendment,  &'c.(s)  is  now  proposed  is 
subject  to  the  like  rules,  &c.,  and  similarly  dealt  with,  as 
■where  it  is  offered  upon  the  report,  (t) 

Reports  on  railway  bills  are  considered  eveiy  Tuesday 
and  Thursday  afternoon  on  the  meeting  of  the  house.  (I) 


14.  Third  Reading. 

When  the  report,  &c.  has  been  agreed  to,  the  bill  is 
ordered  to  be  ingrossed,  and  the  house  will  not  read  it  a 
third  time  until  it  is  certified  that  the  ingrossment  thereof 
has  been  examined,  and  agrees  with  the  bill  as  amended 
in  committee,  and  on  consideration  of  the  report,  (u) 

One  clear  day's  notice  in  writing  must  be  given  by  the 
agent  for  the  bill  at  the  Private  Bill  Office  of  the  day  pro- 
posed for  the  third  reading,  and  this  must  not  be  until  the 
bill  has  been  reported,  or  the  report  thereof  considered. (.r) 

(n)  C.  S.  O.  119.  (0  See  ante,  p.  ccxcix. 

(0)  C.  S.  O.  120.  (0  C.  S.  O.  123. 

(9)  May  on  Pari.  431.  (u)  S.  O.  145. 

(r)  S.  O.  139.  (x)  S.  0.142. 
(s)  S.  O.  141. 


Parliamentary  Practice.  ccci 

On  the  third  reading  clauses  may  be  offered  and  amend- 
ments proposed,  subject  to  the  like  rules  and  regulations  as 
on  the  report  or  the  further  consideration  of  the  report, 
save  that  at  this  stage  the  bill  cainiot  be  recommitted,  but  the 
clauses,  &c.  are  simply  referred  to  the  standing  orders  com- 
mittee, (.r) 

The  bill  being  read  a  third  time  and  passed,  this  is  taken 
to  be  a  final  approval  by  the  house  of  the  entire  bill,  pro- 
visions and  amendments. 


Section  IV. 

PROCEEDINGS  IN  THE  HOUSE  OP  LORDS,  (y) 

1.  General  Conduct  of  Business. 

2.  Introduction  of  Bill,  &c. 

3.  Committee  on  Standing  Orders. 

4.  Second  Reading  and  Commitment. 

5.  Committee  on  Bill. 

6.  Report,  &c. 

7.  Third  Reading. 

8.  Proceedings  in  Commons  in  regard  of  Lords' 

Amendments. 

1 .  General  conduct  of  business.  All  proceedings  in  the 
House  of  Lords  with  respect  to  private  bills  are  entered  in 
the  minutes  of  the  house,  kept  in  the  office  of  tlie  clerk  of 
the  parliaments,  which  minutes  are  open  for  inspection,  (z) 

2.  Introduction  of  bill,  4"f.  Upon  the  bill  being  brought 
up  from  the  House  of  Commons  it  is  read  a  first  time. 
After  this  has  been  done,  and  before  any  further  proceed- 
ings thereupon,  the  house  requires  that  there  be  deposited  in 
the  office  of  the  clerk  of  the  parliaments  a  statement  of  the 
length  and  breadth  of  the  space  wliich  is  intended  or  sought 
to  be  taken  for  the  proposed  works,  and  to  give  up  which 
the  consent  of  the  owners  of  tlie  land  lias  not  been  obtained, 
together  with  the  names  of  sucii  owners,  and  the  heights 
above  the  surface  of  all  proposed  works  on  the  ground  of 
each  such  owner  ;  and  also  that  a  return  shall  be  presented 
at  the  same  time  of  the  names  of  the  owners  or  occupiers 
of  any  houses  situated  within  300  yards  of  the  proposed 
works,  who  shall  have,  before  the  31st  of  December  pre- 

(i)  See  ante,  p.  ccxcix. 

\y)  See  post,  Sect.  IX.  as  to  bills  commencing  in  Lords. 

(z)  Ridd.  Pari.  Pract  p.  141. 


cccii  Appendix. 

ceding  the  introduction  of  the  bill  into  parliament,  deposited 
written  objections  to  the  said  railway  with  the  public  officer 
appointed  to  receive  the  plans  of  the  said  railway  within 
the  parish  or  township  in  which  their  property  is  situate ; 
or  if  the  railway  shall  not  be  proposed  to  be  carried  through 
that  parish  or  township,  in  the  one  through  which  the  rail- 
way is  to  pass,  in  the  manner  objected  to  by  the  above- 
mentioned  parties,  (z) 

These  requisites  having  been  complied  with,  of  which 
their  lordships  are  made  acquainted  by  the  clerk  of  the 
parliaments,  the  bill  is  referred  to  the  committee  on  stand- 
ing orders. 

3.  Committee  on  standing  orders.  At  the  commence- 
ment of  every  session  of  parliament  a  standing  order 
committee  is  appointed,  consisting  of  forty  lords,  besides 
the  chairman  of  the  committees  of  the  House  of  Lords, 
who  is  always  chairman  of  such  standing  order  committee. 

Quorum.  Three  of  the  lords  so  appointed,  including  the 
chairman,  are  a  quorum,  (a) 

Railway  bills  are  referred  to  this  committee  previous  to 
the  second  reading,  for  proof  of  compliance  with  the  stand- 
ing orders;  (6)  and  three  days' clear  notice  must  be  given 
of  the  meeting  of  the  committee,  (c) 

Parties  maif  be  heard  upon  petition,  provided  the  matter 
complained  of  be  specifically  stated.  Any  parties  are  at 
liberty  to  appear,  and  to  be  heard  by  themselves,  their 
agents  and  witnesses,  upon  any  petition  which  may  be  re- 
ferred to  the  standing  order  committee  complaining  of  a 
non-compliance  with  the  standing  orders,  provided  the 
matter  complained  of  be  specifically  stated  in  such  petition, 
and  that  such  petition  be  presented  on  or  before  the  second 
day  after  the  introduction  of  the  bill  into  the  House,  {d) 

The  petition,  moreover,  must  have  indorsed  on  its  back 
the  name  or  short  title  of  the  bill  to  which  it  relates,  (e) 

Such  petitions,  it  may  be  remarked,  are  generally  referred 
by  the  house  to  the  standing  orders  committee  together 
with  the  bill. 

Any  proprietor  of  a  company  applying  for  powers  to 

(z)  Minutes  of  Proceedings,  H.  L.  3  July,  1845,  p.  722. 

(a)  L.  S.  O.  219,ss.  2  and  3. 

(ft)  L.  S.  0.219,3.4. 

(c)  lb.  s.  7. 

{d)  L.  S.  O.  219,  s.  5. 

(e)  Resolution  of  Lords  of  12th  June,  1845. 


Parliamentary  Practice.  ccciii 

execute  works  other  than  those  for  which  it  was  originally 
established  by  parliament,  (supposing,  that  is  to  s;iy,  that  he 
dissented  at  the  meeting  called  for  such  purpose  under  the 
standing  orders  of  the  house,)  will  be  permitted,  on  petition- 
ing the  house,  to  be  heard  by  the  committee  on  standing 
orders  touching  the  compliance  with  those  orders.  ( /') 

The  committee  require  proof  that  all  the  particulars  di- 
rected by  the  standing  orders  to  be  attended  to  previous  to 
application  to  parliament,  or  to  the  introduction  of  the  bill 
into  the  house,  have  been  observed,  (g) 

The  committee  are  to  report  whether  the  standing  orders 
have  been  complied  with,  and  if  not,  then  the  grounds  of 
their  decision,  and  any  special  circumstances  connected 
with  the  case,  and  also  their  opinion  as  to  the  propriety  of 
dispensing  with  any  of  the  standing  orders  in  such  case.  (A) 

If  the  committee  report  that  the  standing  orders  have 
been  complied  with,  or  that  in  certain  instances  (stating 
such  specifically  in  their  report)  there  has  been  a  non-com- 
pliance on  the  part  of  the  promoters,  but  the  opinion  of  the 
committee  is  that  in  such  instances  the  standing  orders 
ought  to  be  dispensed  with,  the  bill  is  ordered  to  lie  on  the 
table,  and  leave  given  to  proceed  therewith. 

4.  Second  reading  and  commitment.  The  next  step  is  the 
second  reading,  which  may  take  place  the  day  after  the 
report.  Prior  however  to  this,  printed  copies  of  the  bill 
must  have  been  left  with  the  clerk  of  tlie  parliaments  for 
the  perusal  of  the  Lords.  («') 

Before  the  second  reading  also,  copies  of  the  subscription 
contract,  with  the  names  of  subscribers,  &c.  and  amount  of 
deposit,  or  copies  of  the  declaration  and  estimate,  as  tlie  case 
may  be,  must  be  printed  at  the  expense  of  the  promoters  of 
the  bill,  and  delivered  at  the  office  of  the  clerk  of  the  par- 
liament for  the  use  of  the  house.  (A") 

When  the  bill  has  been  read  a  second  time  here,  as  in 
the  Commons,  the  principle  is  taken  as  aflirmcd,  and  the 
bill  is  immediately  committed.  (/) 

5.  Committee  on  bill.—  {\.)  On  unopposed  bill.  Unop- 
posed bills  are  referred  to  open  committees,  presided  over 
by  the  chairman  of  the  Lords'  Committee,  with  whom 
practically  rests  the  conduct  and  management.  He  is  as- 
sisted in  his  duties  by  a  counsel  attached  to  his  office,  wiio 

(  f)  L.  S.  O.  234,  s.  2.        (i)  L.  S  O.  96. 

(i)  See  supra.  Sect.  L  (k)  L.  S.  O.  224,  s.  6. 

(I)  L.  S.  O.  219,  s.  6.  (/)  May  on  Pari.  |..439. 


ccciv  Appendix. 

examines  the  provisions  of  the  bill,  and  particularly  indi- 
cates any  variance  with  the  standing  orders  or  general  laws 
of  the  land.  The  chairman  may  report  his  opinion  to  the 
house  that  an  unopposed  bill  should  be  treated  as  opposed, 
and  then  it  will  be  referred  to  a  different  committee,  as  if  it 
had  been  treated  as  an  opposed  bill  in  the  first  instance.  {I) 

(2.)  On  opposed  bill.  Every  opposed  bill  is  referred  to 
a  select  committee  of  five  lords,  who  choose  their  own 
chairman.  (/)  The  house  itself  appoints  the  time  for  the 
first  meeting,  (w) 

Such  committee,  it  may  be  remarked,  are  not  to  be  named 
to  the  house  on  the  same  day  on  which  the  bill  is  read  a 
second  time,  (n) 

The  duties  and  proceedings  (o)  of  the  committee  on  the 
bill  are  very  similar  to  those  of  corresponding  committees  in 
the  House  of  Commons.  The  bill  is  gone  through  clause 
by  clause,  and  is  reported  with  the  amendments  to  the 
house.  There  are,  however,  one  or  two  respects  in  which 
the  practice  of  the  Lords  differs  from  that  of  the  Commons. 
One  is,  that  before  the  room  has  been  cleared  for  the  pur- 
pose of  deliberating  upon  the  preamble,  the  committee  re- 
quire parties  to  state  at  once  the  amendments,  &'c.  which 
they  propose  to  make  in  the  clauses  of  the  bill,  and  to  pro- 
duce their  evidence  in  support  of  them.  Another  is,  that 
witnesses  are  examined  on  oath,  previously  administered  at 
the  bar  of  the  house,  (p) 

It  is  the  duty  of  the  committee  to  see  that  the  provisions 
required  by  the  standing  orders,  and  which  correspond, 
to  a  great  extent,  with  those  above  adverted  to  as  re- 
quired in  the  Commons,  {q)  are  inserted  in  the  bill,  (r) 

The  committee  on  every  opposed  railway  bill  are  also  di- 
rected to  inquire  into  and  report  on  the  various  matters 
pointed  out  by  the  standing  orders,  (s)  But  where  there  is 
no  opposition,  or  it  is  withdrawn,  or  the  adverse  parties  do 
not  appear,  the  committee  have  a  discretion  to  determine 
how  far  it  may  be  necessary  to  inquire  into  these  particu- 
lars. (^) 

(Z)  May  on  Pari.  p.  439. 

(m)  lb.  440. 

(n)  L.  S.  O.  219,  s.  16. 

(o)  As  to  petition  against  bill  on  merits  see  Addenda. 

(p)  May  on  Pari.  440. 

(q)  See  supra,  p.  cclxiv. 

(r)  L.  S.  O.  228,  233,  ss.  4  and  5,  ante,  p.  cclxix. 

(s)  See  post,  p.  cccix  ;  L.  S.  O.  233, 9.  1. 

(0  L.  S.  O.  233,  s.  3. 


J 


Parliamentary  Practice.  cccv 

Except  in  those  cases,  the  house  will  not  proceed  with 
the  further  consideration  of  the  report  until  it  has  received 
from  the  committee  specific  replies  in  answer  to  each  of  the 
questions  embodied  in  those  particulars,  (m) 

The  committee  are  not  to  examine  into  the  compliance 
with^  the  standing  orders,  the  compliance  with  which  is 
required  to  be  proved  before  the  standing  orders  commit- 
tee, (.rj 

6.  Report,  Sj-c.  The  bill  having  passed  through  the  com- 
mittee is  next  to  be  reported.  What  particulars  in  cases  of 
opposed  bills  the  report  must  embody  has  been  already 
considered. 

When  railway  bills  have  been  opposed  in  the  committee 
on  the  bill,  the  further  consideration  of  the  report  will  not, 
as  we  have  seen,  be  proceeded  with,  until  the  house  has  re- 
ceived from  the  committee  specific  replies  in  answer  to 
each  of  the  questions  on  which  they  are  directed  specially  to 
report.  (3^) 

7.  Third  reading.  After  it  is  reported,  the  bill  is  read  a 
third  time.  But  this  will  not  be  done  unless  the  provisions 
required  by  the  standing  orders  have  been  inserted  therein. 
The  standing  orders  further  require  that  a  copy  of  the  bill 
as  amended  in  com.mittee  be  deposited  at  the  Board  of 
Trade  three  days  before  the  same  shall  be  read  a  third 
time,  {z) 

Also  every  opposed  railway  bill  into  which  amendments 
have  been  introduced  in  connnittee,  must  be  reprinted  as 
amended  before  the  third  reading,  unless  the  chairman  re- 
port it  to  be  unnecessary.  («) 

8.  Proceedings  in  C'innnons  in  regard  to  Lords'  amend- 
ments. After  the  bill  is  read  a  third  time  and  passed  by  the 
lords,  still,  should  the  Lords  have  introduced  any  amend- 
ments therein  in  its  passage  through  their  house,  it  must 
be  returned  to  the  Commons,  in  order  to  such  amendments 
being  there  taken  into  consideration.  In  such  case  notice 
must  be  given  in  the  Private  Bill  Office  on  the  previous 
day.  (6)  And  no  such  notice  can  be  given  until  the  bill 
has  been  received  from  the  Lords. ^c)    If  the  Lords'  amend- 

(m)  L.  S.  O.  233,  s.  2. 

(x)  L.  S.  0.219,8.8. 

(y)  L.  S,  O.  233,  s.  2. 

(i)  L.  S.  O.  234,  s.  4,  as  amended.     See  Addenda. 

(rt)  L.  S.  O.  234.  s.  1. 

(ft)  C.  S.  O.  146. 

(c)  Speaker's  Order,  10th  May,  1843  ;  May  on  Pari.  p.  454. 


cccvi  Appendix. 

meuts  are  agreed  to,  they  are  required  to  be  entered  by  one 
of  the  clerks  in  the  Private  Bill  Office  upon  the  printed 
copy  of  the  bill,  as  amended  in  the  committee,  and  there 
preserved,  (rf) 

If  the  amendments  are  not  agreed  to,  the  bill  is  lost, 
unless  the  other  house  consent  to  waive  them.  Or  the  Com- 
mons may  agree  to  the  amendments  with  amendments,  to 
which  the  upper  house  again  may  agree  or  add  others,  and 
so  on  till  both  houses  are  agreed,  when  the  bill  finally  re- 
ceives the  royal  assent. 


Section  V. 

OF   THE    EVIDENCE    IN  SUPPORT    OF    A  PRO- 
JECTED RAILWAY. 

1.  Of  Evidence  of  Compliance  with  the  Standing  Orders. 

2.  Of  Evidence  in  Support  of  the  Bill. 

1.  The  first  head  again  subdivides  itself  into  two,  ac- 
cording to  the  tribunal  before  which  it  is  to  be  adduced, 
including  the  first,  the  necessary  evidence  before  the  sub- 
committee on  petitions  in  the  Commons  ;  the  second,  that 
before  the  standing  orders  committee  in  the  House  of  Lords. 

The  principal  points  which  require  to  be  proved  before  a 
subcommittee  on  a  petition  are  those  pointed  out  by  the 
standing  orders.  They  are  mainly  reducible  to  the  follow- 
ing heads,  as  they  relate,  1st,  to  the  notices ;  2nd,  to  the 
plans  and  sections;  3rd,  to  the  applications  to  owners,  &c. ; 
4th,  to  the  estimate  and  subscription  contract ;  5th,  to  the 
deposits  on  the  subscriptions  ;  and  last,  to  the  deposit  of  a 
copy  of  a  bill  annexed  to  a  petition,  &c.  at  the  Board  of 
Trade. 

1st.  As  to  the  notices.  The  due  insertion  of  the  notices 
in  the  Gazette  and  newspapers  must  be  established  by  the 
production  of  the  Gazette  and  newspapers,  and  either  the 
party  producing  them,  or  some  one  else  called  for  the  pur- 
pose, must  be  able  to  speak  to  such  notices  being  duplicates, 
the  nature  of  their  contents,  &c. 

2nd.  Of  the  plans,  sections,  ^-c. — To  prove  the  con-ect- 
ness  of  the  plans,  sections,  &c.,  the  company's  engineer  or 
surveyor  must  be  called,  who  must  be  prepared  to  say  they 
are  on  the  proper  scale,  &c  ;  and  the  same  part)',  or  some 
one  else  who  has  examined  them,  should  be  prepared  to 

(d)  C.S.  0.  143. 


Parliamentary  Practice.  cccvii 

prove  the  accuracy  of  all  copies  of  such  plans,  &c.  The 
deposit  of  the  plans,  &c.  with  the  clerk  of  the  peace,  Sec, 
must  be  shown,  as  also  that  the  counties,  &c.  in  which  such 
deposits  have  been  made,  are  all  the  counties,  &c.  to  which 
the  bill  relates.  That  the  book  of  reference  contains  the 
names  of  all  the  owners,  &c.,  must  be  proved  by  the  party 
who  compiled  it ;  and  either  that  party,  or  some  one  else, 
must  be  prepared  to  speak  to  the  correctness  of  the  copies 
deposited  with  the  Board  of  Trade,  &c. 

The  party  depositing  the  plans,  &c.,  with  the  clerk  of  the 
peace,  &c.,  should  see  that  he  or  his  deputy  makes  the  ne- 
cessary memorial  thereupon,  denoting  the  time  of  their 
being  lodged  at  his  office. 

In  the  case  of  Scotch  and  Irish  railway  bills,  the  delivery 
of  the  plans  may  be  proved  by  the  certified  affidavit  of  the 
party  by  whom  they  were  delivered. 

3rd.  As  to  tlie  application  to  owners,  ^x.  To  prove  the 
making  of  the  requisite  applications,  the  person  or  persons 
by  whom  they  were  made  must  be  called.  In  the  absence 
of  other  proof,  the  production  of  a  written  acknowledgment 
by  the  party  applied  to  will  be  sufficient.  That  the  lists  of 
owners,  &c.  thus  .applied  to,  embrace  all  the  owners,  &c. 
must  likewise  be  shown  by  some  one,  generall}'  the  party 
compiling  the  book  of  reference.  The  correctness  of  the 
lists  of  assents,  &c.,  must  be  established  by  calling  the  party 
by  whom  they  were  made  out. 

Notice  of  a  bill  for  the  relinquishment  of  any  portion  of 
a  work  authorized  by  some  prior  act  must  be  proved  by 
putting  in  a  copy,  and  proving  its  correctness,  and  the  ser- 
vice of  the  original. 

4ih.  As  to  the  estimate  and  subscription  contract.  The 
making,  &c.,  of  the  estimate  must  be  proved  by  putting  in 
the  document  and  calling  the  party  who  made  it,  or  some 
one  who  saw  him  sign  it,  to  speak  to  the  fact.  To  esta- 
blish the  subscription  contract,  and  show  that  it  satisfies  all 
the  requisites  of  the  standing  orders,  the  contract  must  be 
produced  by  the  solicitor  for  the  bill,  or  some  one  else  who 
can  speak  to  its  contents,  &c.;  and  the  witness  or  witnesses 
attesting  the  execution  thereof  by  the  subscribers  must  be 
called  to  prove  the  same. 

The  printing  and  delivery  of  copies  of  the  subscription 
contract,  &c.  at  the  Vote  Office  may  be  proved  by  the  par- 
liamentary agent  or  some  one  from  his  office. 

5th.  Of  the  deposit.  The  payment  thereof  into  tlu;  proper 
court  must  be  proved  by  the  production  of  an  office^  copy  of 
the  certificate  of  the  accountant-general,  &c.,  and  the  parly 


cccviii  Appendix. 

producing  the  document  should  be  prepared  to  speak  to  the 
payment  being  prior  to  the  presentation  of  the  petition. 

In  the  case  of  Irish  and  Scotch  bills,  compHance  with  the 
standing  orders  may  be  shown  by  affidavits  certified  by  the 
proper  authorities,  unless  the  committee  require  further  evi- 
dence.—C.  S.  O.  11  and  12. 

Lastly,  the  deposit  of  the  bill,  with  a  petition  annexed,  &c. 
at  the  Board  of  Trade,  &c,  in  due  time,  may  be  proved  by 
the  parliamentary  agent  or  some  one  from  his  office. 

2.  Of  the  proof  of  compliance  with  the  standing  orders 
requisite  before  Lords'  standing  order  committee.  And  here 
those  points  only  will  be  noticed  in  whicli  by  reason  of  the 
differences  between  the  standing  oi'ders  of  the  two  houses, 
the  requisite  evidence  is  also  to  the  like  extent  necessarily 
different.  They  may  be  classed  under  the  following  heads, 
as  they  relate,  1st,  to  the  notices ;  2nd,  to  the  plans,  sections, 
&c. ;  3rd,  to  the  applications  to  owners;  4th,  to  the  signa- 
ture of  parties  appearing  in  the  bill  as  directors;  and  oth, 
as  to  proceedings  in  the  case  of  a  bill  to  empower  an  exist- 
ing company  to  execute  any  work  other  than  that  for  which 
it  was  originally  established. 

\st.  As  to  the  notices.  The  affixing  of  the  necessary 
notices  to  the  doors  of  sessions  houses,  or  in  Scotland  on 
churches,  must  be  proved  by  the  testimony  of  the  parties 
by  w'hom  they  were  severally  affixed.  As  to  the  evidence 
of  such  notices  being  duplicates,  &c.  see  ante,  p.  cccvi. 

Indly.  As  to  plans,  sertio7}s,  S^t,  The  delivery  of  copies 
of  so  much  of  the  standing  orders  of  the  house  as  relates  to 
the  deposit  of  plans,  &c.,  with  the  clerk  of  the  peace,  &c., 
must  be  proved  by  the  person  who  left  such  copies. 

The  deposit  of  copies  of  the  plans,  sections,  and  books  of 
reference  in  the  office  of  the  clerk  of  the  parliament  is  to  be 
proved  similarly  to  that  in  the  Private  Bill  Office  under  the 
coiTesponding  order  of  the  Commons.  The  evidence  as  to  the 
plans  and  sections  of  alterations  made  subsequently  to  the 
introduction  of  the  bill  into  parliament  and  the  deposit  of 
the  same  at  the  office  of  the  clerk  of  the  peace,  &c.,  is  the 
same  as  in  the  case  of  the  original  plans,  &c. 

3rdli/,  In  the  Lords,  as  a  general  rule,  it  is  not  necessary 
to  prove  the  services  of  the  notices  by  the  witnesses,  (f/)  but 
the  evidence  of  the  solicitor  that  he  gave  instructions  for  all 
the  notices  to  be  served,  &c.,  and  that  he  believes  they  were 
served,  is  sufficient. 

Athly.  To  prove  the  signature  of  the  printed  copy  of  the 
bill,  &c.,  by  parties  whose  names  are  introduced  in  such  bill 

(d)  See  Second  Report  of  Lords'  Committee,  post,  Sect.  IX. 


Parliamentary  Practice.  cccix 

as  directors,  &c.  the  printed  copy  of  the  bill  must  be  put  in, 
bearing  the  signatures  of  the  parties  in  question,  and  then 
the  party  who  witnessed  their  signatures  must  be  called  to 
prove  them,  or  else  some  one  acquainted  with  those  parties' 
handwriting;  the  party  must  also  be  prepared  to  speak  to 
the  identity  of  the  parties  signing  witlj  those  named  in  the 
bill,  and  that  they  actually  fill  the  offices  assigned  to  them  ; 
or,  in  lieu  of  this,  it  may  be  shown  that  all  the  parties 
named  in  the  bill  as  directors,  &c.  signed  the  petition  to 
bring  in  the  bill. 

Lastly,  as  to  the  proof  in  cases  of  bills  to  empower  an 
existing  company  to  execute  any  work  other  than  that  for 
which  it  was  originally  established.  This  must  go  to  es- 
tablish the  four  following  points:  1st,  that  the  meeting  of 
the  proprietors  was  duly  advertized  in  the  newspapers  for  the 
purpose  of  considering  the  draft  of  such  bill;  2nd,  the  time 
of  holding  the  meeting  ;  3rd,  that  the  draft  of  the  proposed 
bill  was  submitted  to  the  meeting  so  convened ;  and  4th, 
that  it  was  approved  of  by  at  least  three-fifths  of  those  pre- 
sent. To  establish  these  points  the  pi-oper  course  is  to  call 
the  solicitor  or  seci'etary,  who  must  produce  the  newspapers 
in  which  the  intended  meeting  was  advertized  of  the  com- 
pany, and  the  draft  submltttju  to  the  meeting,  and  prove  it 
to  be  the  draft  so  submitted,  &c. 


2.  Of  the  Evidence  to  be  adduced  before  the  Commit- 
tee ON  THE  Bill  in  Support  thereof. 

The  nature  of  this  evidence  may  be  mainly  collected 
from  a  consideration  of  the  particulars  as  to  which  the 
standing  orders  require  the  conunittee  to  inquire  and  report 
specially,  and  which  embrace  a  very  large  portion  of  the 
evidence  necessary  to  be  adduced  in  support  of  the  preamble. 
The  main  particulars  alluded  to  are  as  follows :  (e) 
1 ,  Capital  and  loans.     The  proposed  capital  of  the  com- 

(e)  By  recent  resolutions  of  the  two  houses  so  much  of  the 
standing  orders  (viz.  the  7th,  8lh  and  9th  paragraplisofthe  a7lh 
order  of  the  Commons,  and  paragraplis  2,  3  and  4  of  1st  sect,  of 
233rd  order  of  Lords)  as  required  all  railway  committees  to  insti- 
tute inquiries  as  to  the  existing  traffic  between  the  termini  of  the 
proposed  railway  and  as  to  the  anticipated  traffic  on  such  rail- 
way, &c.  has  been  rescinded.  Consequently,  detailed  evidence 
of  traffic,  as  a  general  rule,  need  no  lonj.Tur  be  adduced  by  the 
promoters  of  a  bill  before  the  committee,  liy  a  still  subse<[ucat 
resolution  of  the  House  of  Commons,  it  may  be  remarked,  the 
20th  paragraph  of  the  above  order  of  that  House  has  also  been 
rescinded.    See  post,  Sect.  IX. 


cccx  Appendix. 

pany  formed  for  the  execution  of  the  project,  and  the 
amount  of  any  loans  which  they  may  be  empowered  to 
raise  by  the  bill. 

2.  Shares  and  deposits.  The  amount  of  shares  subscribed 
for,  and  the  deposits  paid  thereon. 

3.  Names  ^c.  of  directors.  The  names  and  places  of 
residence  of  the  dii'ectors  or  provisional  committee,  with  the 
amount  of  shares  taken  by  each. 

4.  Local  shareholders.  The  number  of  shareholders  who 
may  be  considered  as  having  a  local  interest  in  the  line,  and 
the  amount  of  capital  subscribed  for  by  them. 

5.  Other  parties,  4c.  The  number  of  other  parties  and 
the  capital  taken  by  them. 

6.  Subscribers  for  2000^.  and  upwards.  The  number  of 
shareholders  subscribing  for  2000/.  and  upwards,  with  their 
names  and  residences,  and  the  amount  for  which  they  have 
subscribed. 

7.  Whether  railwaij  be  a  complete  line,  or  part  of  a  more 
extended  plan.  Whether  the  proposed  railway  be  a  com- 
plete and  integral  line  between  the  termini  specified,  or  a 
part  of  a  more  extended  plan  now  in  contemplation,  and 
likely  to  be  hereafter  submitted  to  parliament,  and  to  what 
extent  the  calculations  of  remuneration  depend  on  such  con- 
templated extension  of  the  line. 

8.  Whether  report  from  Board  of  Trade  has  been  referred 
to  the  committee,  4r.  Whether  any  report  from  the  Board 
of  Trade  in  regard  to  the  bill,  or  the  objects  thereby  pro- 
posed to  be  authorized,  has  been  referred  by  the  house  to 
the  committee,  and  if  so,  whether  any  and  what  recommen- 
dations contained  in  such  report  have  been  adopted  by  the 
committee,  and  whether  any  and  what  recommendations 
contained  in  such  report  have  been  rejected. 

9.  Assistant  engines.  What  planes  on  the  railway  are 
proposed  to  be  worked,  either  by  assistant  engines,  stationary 
or  locomotive,  with  the  respective  lengths  and  inchnations  of 
such  planes. 

10.  Engineering  difficulties.  Any  peculiar  engineering 
difficulties  in  the  proposed  hne,  and  the  manner  in  which 
it  is  intended  they  should  be  overcome. 

11.  Ventilation  of  tunnels.  The  length,  breadth  and 
height  and  means  of  ventilation  of  an}-  proposed  tunnels, 
and  whether  the  strata  through  which  they  are  to  pass  are 
favourable  or  otherwise. 

12.  Gradients  and  cu?-ves.  Whether  in  the  lines  pro- 
posed, the  gradients  and  curves  are  general!}'  favourable  or 
otherwise,  and  the  steepest  gradient,  exclusive  of  the  in- 


Parliamentary  Practice.  cccxi 

clined  planes  above  referred  to,  and  the  smallest  radius  of  a 
curve. 

13.  Length  of  line.  The  length  of  the  main  line  of  the 
proposed  railway,  and  of  its  branches  respectively. 

14._  Whether  passing  any  highwai/s  on  a  level.  Whether 
it  be  intended  that  the  railway  should  pass  on  a  level  any 
turnpike  road  or  highway,  and  if  so,  to  call  the  particular 
attention  of  the  house  to  that  circumstance. 

15.  Amount  of  estimates,  and  whether  adequate.  The 
amount  of  the  estimates  of  the  cost  or  other  expenses  to  be 
incurred  up  to  the  time  of  the  completion  of  the  railway, 
and  whether  they  appear  to  be  supported  by  evidence,  aiid 
to  be  fully  adequate  for  the  purpose. 

IG.  Annual  expenses.  The  estimated  charge  of  the  an- 
nual expenses  of  the  railway  when  conipleted,"and  how  far 
the  calculations  on  which  the  charge  is  estimated  have  been 
sufficiently  proved. 

17.  Revenue  in  reference  to  annual  charge.  Whether 
the  calculations  proved  in  evidence  before  the  committee 
have  satisfactorily  established  that  the  revenue  is  liicely  to 
be  sufficient  to  support  the  annual  charges  of  the  main- 
tenance of  the  railway,  and  still  allow  profit  to  the  pro- 
jectors. (/) 

18.  Number  of  assents,  dissents  and  neuters.  The  num- 
ber of  assents,  dissents  and  neuters  upon  the  line,  and  the 
length  and  amount  of  property  belonging  to  eacli  class  tra- 
versed by  the  said  railway,  distinguishing  owners  from  oc- 
cupiers ;  and  in  the  case  of  any  bill  to  vary  the  original 
line,  the  above  particulars  with  ret'erence  to  such  parties 
only  as  may  be  affected  by  the  proposed  deviation. 

19.  Engineers  examined.  The  name  of  each  engineer 
examined  in  support  of  the  bill,  and  of  any  examined  in  op- 
position to  it. 

20.  Allegations  of  petitions  in  opposition.  The  main  al- 
legations of  every  petition  which  may  have  been  referred  to 
the  committee  in  opposition  to  the  preamble  of  tiie  bill,  or 
to  any  of  its  clauses ;  and  whether  tlie  allegations  iiave  been 
considered  by  the  committee,  and  if  not  considered,  the 
cause  of  their  not  having  been  so. 

Fitness  in  an  engineering  point  of  view,  and  any  other  cir- 
cumstances. And  the  conmiittee  shall  also  report  generally 
as  to  the  fitness,  in  an  engineering  point  of  view,  of  tiie  pro- 
jected line  of  railway,  and  any  circumstances  which,  in  the 
opinion  of  the  committee,  it  is  di'sirable  tiie  house  slxmld  be 
informed  of.     H.  C.  87;  H.  L.  233,  s.  1. 

(/)  See  ante,  ii.  (e),  p.  cecix. 


cccxii  Appendix. 

The  different  subject-matters  of  inquiry  befoi'e  a  com- 
mittee having  been  thus  pointed  out,  it  may  be  proper,  in 
the  next  place,  to  notice  the  evidence  required  to  be  adduced 
bj'  the  promoters  in  regard  of  them  and  of  the  preamble 
generally,  and  herein,  1st,  of  the  evidence  in  chief;  2nd,  of 
rebutting  evidence. 

The  foimer  species  of  evidence  would  seem  mainly  re- 
ducible to  the  three  following  heads :  (1st)  general  evidence 
of  merits;  (2nd)  engineering  evidence;  and  (3rd)  formal 
proofs  relative  to  the  proposed  capital  of  the  company,  the 
amount  of  loans  which  the  bill  empowers  them  to  raise,  the 
amount  of  shares  subscribed  for,  and  the  deposits  paid 
thereon,  S:c. 

Though,  generally  speaking,  perhaps  these  different 
classes  of  evidence  follow  one  another  in  tiie  above  order, 
yet  it  is  a  matter  wholly  resting  in  the  discretion  of  the 
promoters  of  the  bill,  and  it  is  accordingly  competent  for 
them  in  any  given  case  to  depart  from  it  in  favour  of  ano- 
ther, that  may  promise  to  be  either  more  convenient,  or 
better  suited  to  the  circumstances  of  their  case. 

To  commence,  however,  with  that  which  is  generally 
the  (1st)  taken  by  the  promoters  of  bills,  viz.,  the  evi- 
dence of  general  merits.  The  object  of  the  promoters  here 
is,  of  course,  to  satisfy  the  committee  of  the  expediency  of 
the  measure  in  regard  of  the  public  interest,  and  of  the  ad- 
vantages that  are  likely  to  result,  both  locally  and  to  the 
community  at  large,  from  its  construction.  For  this  pur- 
pose they  proceed  to  call  persons  of  every  possible  grade  and 
denomination  connected  with  the  various  districts  through 
which  the  railway  is  intended  to  pass,  and  who  are  conse- 
quently competent  to  speak  to  the  trade,  manufactures,  and 
population  of'  such  districts,  the  quantity  and  quality  of  their 
produce,  the  state  of  the  traffic,  the  inadequacy  of  the 
existing  means  of  conveyance  and  communication  to  answer 
the  wants  of  the  inhabitants,  and  the  like,  (c) 

One  very  important  element  of  proof  under  this  head  is 
to  show  what  the  degree  of  favour  is  that  is  entertained 
towards  the  proposed  railway  by  the  inhabitants  of  the 
towns  and  districts  along  the  line.  For  this  purpose  the 
committee  will  receive  hearsay  evidence  of  what  has  taken 
place  at  any  meetings  held  at  the  various  places  along  the 
line,  and  at  which  the  objects  of  the  promoters  have  been 
discussed,  {d) 

(c)  As  to  the  evidence  of  the  population  on  competing  Hnes, 
see  ante,  p.  ccxxix,  and  suggestions  of  tliis  session,  Sect.  X. 
\d)  Ridd.  Pari.  Pract.  158. 


Parliamentary  Practice.  cccxiii 

Although  the  production  of  detailed  traffic  evidence,  as  a 
general  rule,  has  ceased  to  be  necessary  by  reason  of  the 
rescission  of  the  portion  of  the  standing  orders  just  alluded 
to,  (see  ante,  p.  cccix.)  yet  a  certain  amount  of  general  evi- 
dence in  respect  to  the  anticipated  traffic  on  the  line  may 
still,  it  is  conceived,  be  necessary  in  some  cases  to  substan- 
tiate the  preamble,  and  likewise  in  the  Lords,  to  enable  the 
committee  to  report  on  the  17th  resolution  mentioned  above. 

The  most  satisfactory  mode  of  proving  such  anticipated 
traffic  in  general,  (for  to  a  certain  extent,  this  must  of  course 
depend  on  circumstances,)  would  seem  to  be,  by  giving  proof 
of  the  existing  traffic,  i.  e.  the  number  of  public  and  private 
conveyances  ordinarily  passing  between  the  termini,  the 
tonnage,  &c.  of  goods,  &c.  conveyed  by  water  carriage,  and 
the  like,  and  then  showing  what  increase  of  traffic  may  fairly 
be  expected  to  follow  the  construction  of  the  railway  by  reason 
of  the  impulse  given  thereby  to  trade,  the  additional  faci- 
lities affijrded  for  travelling,  and  the  like.  To  establish  the 
former  of  these  points,  the  best  evidence  would  be  that  of 
persons  either  engaged  in  those  branches  of  traffic,  or  who, 
from  personal  inquiry  and  observation,  &c.  are  possessed  of 
the  requisite  information ;  on  the  latter,  the  production  of 
persons  acquainted  with  the  state  of  trade,  agriculture, 
manufactures,  &c.  throughout  the  districts  proposed  to  be 
traversed  by  the  railway,  and  consequently  competent  to 
give  a  fair  judgment  of  the  effects  which  the  construction  of 
the  railway  is  likely  to  produce  on  the  trade,  &c.  of  the 
districts  in  question. 

To  this  should  be  added  evidence  of  the  population  within 
certain  distances  of  the  proposed  line,  (e) 

{2nd.)  Of  the  engineering  evidence.  The  principal  evi- 
dence on  this  part  of  the  promoters'  case  is  that  of  their 
own  engineer  in  chief,  though  it  is  in  most  cases  requisite 
for  the  promoters  to  be  prei)ared  to  call  other  engineers, 
surveyors,  &c.,  in  order  to  corroborate  their  own  engineer's 
testimony,  and  satisfy  the  committee  of  the  accuracy  of  the 
plans  and  estimates,  and  the  correctness  of  the  principles 
on  which  the  line  before  the  committee  has  been  laid  out, 
&c.  This  is  more  especially  the  case  where  any  contro- 
verted principle  of  engineering  science  is  likely  to  be 
brought  in  question,  as,  for  instance,  where  two  comi)etnig 
lines  have  been  referred  to  the  same  group,  of  wliich  one 
proposes  to  adopt  the  locomotive  and  the  other  the  atnio- 

(e)  As  to  this,  see  ante,  p.  ccxxix.  and  the  new  suggeslionfl 
of  this  session,  post,  sect.  X. 


cccxiv  Appendix. 

spheric  principle  of  traction  ;  or  again,  one  is  to  be  con- 
structed on  the  broad,  the  other  on  the  narrow  gauge. 

The  evidence  as  to  the  nature  of  the  works,  &c.  (see  9th, 
10th,  11th,  12th  and  13th  resolutions),  may  be  prepared 
and  handed  in  by  the  engineer  in  a  tabular  form. 

The  same  of  the  estimates,  (see  15th  resolution,)  which 
may  be  classed  under  the  following  heads :  costs  of  earth 
work,  of  bridges  and  viaducts,  of  tunnels,  of  permanent 
way,  &c. 

To  prove  the  value  of  the  land,  &c.  required  for  the  pur- 
poses of  the  undertaking,  the  proper  evidence  is  that  of  the 
surveyor  by  whom  the  valuation  was  made.  He  cannot,  as 
■we  have  alreadj'  had  occasion  to  notice,  be  required  to  give 
his  estimate  of  any  particular  piece  of  ground,  though  he 
may  be  asked  generally  as  to  the  value  per  acre  he  has  fixed 
on  land  in  a  particular  district  or  on  any  particular  descrip- 
tion of  land. 

Where  it  is  desired  by  the  promoters  to  obtain  power  to 
cross  any  public  highway  on  the  level,  which,  it  may  be  re- 
marked, must  be  specified  in  the  bill,  the  engineer  must  be 
prepared  with  sufficient  evidence  to  satisfy  the  committee  of 
the  reasonableness  of  this  departure  fi-om  the  provisions  of 
the  Railways  Clauses  Consolidation  Act.  {d)  The  nature 
of  this  evidence  must,  of  course,  depend  upon  the  circum- 
stances of  the  particular  case,  as,  for  instance,  that  the  levels 
of  the  countT}'  at  the  proposed  point  of  crossing  do  not 
admit  of  the  construction  of  a  bridge  without  occasioning  a 
greater  degree  of  inconvenience  than  would  result  from  a 
level  crossing,  &:c.  This  evidence  may  also  be  given  in 
a  tabular  form,  i.  e.  the  bridges  may  be  classed,  and  the 
observations  applicable  to  each  written  against  them. 

If  the  promoters  seek  to  procure  in  their  bill  the  in- 
sertion of  a  clause  authorizing  the  carrying  a  carriage  road 
over  or  under  the  i-ailway  with  steeper  gradients  than 
what  the  standing  orders  (e)  permit,  (a  clause,  it  may  be 
remarked,  which  the  committee  have  no  power  to  admit 
without  a  recommendation  to  that  effect  from  the  Board  of 
Trade),  it  is  necessary  for  the  promoters,  before  going  into 
committee,  to  make  application  to  the  Board  of  Trade,  and 
satisfy  them  of  the  propriety  and  reasonableness  of  what 
they  propose  to  do.  If  the  Board  report  in  their  favour,  the 
committee  in  general,  it  is  conceived,  would  adopt  the  report 

(d)  See  Act,  s.  46,  App.  I.,  ante  ;  see  also  Resolution  14, 
ante,  p.  cccxi. 

(e)  See  ante,  p.  cclxv. 


Parliamentary  Practice.  cccxv 

and  pass  the  clause  (/),  but  if  they  are  not  satisfied  with  the 
report,  it  may  be  necessary  to  give  before  the  committee  evi- 
dence of  the  reasons  adduced  before  the  Board  of  Trade  in 
support  of  the  clause. 

Though  it  is  not  likely  that  any  reports  on  railways  (see 
8th  resolution)  will  be  made  by  the  Board  of  Trade  in  the 
present  session  unless  they  are  called  for,  still,  should  any 
be  made,  and  should  they  contain  any  special  recommend- 
ation, evidence  should  be  given  as  to  the  compliance  with 
such  recommendation. 

Where  any  reports  of  the  Board  of  Trade,  or  other  do- 
cuments emanating  from  that  department,  have  been,  ac- 
cording to  the  usual  practice  with  regard  to  such  documents, 
referred  by  the  house  to  the  committee,  such  documents 
are  recognized  by  the  committee  in  virtue  of  such  reference, 
and  may  accordingly  be  commented  on  by  counsel,  and 
otherwise  used  without  any  further  proof  being  required  of 
their  authenticity,  &c. 

Where  dociunents  of  the  class  in  question  are  not  before 
the  committee,  not  having  been  so  referred,  the  course  for 
parties  wishing  to  bring  them  before  the  committee  is  to 
procure  a  member  (generally  one  of  the  committee)  to  move 
the  house  to  refer  them  to  the  committee. 

In  some  cases  ihe  works  of  the  promoters  may  involve 
an  interference  with  the  rights  or  interests  of  the  public,  as 
for  instance,  where  they  contemplate  crossing  a  navigable 
river  or  harbour,  running  under  an  arsenal  or  fort,  and 
the  like.  In  all  such  cases  the  promoters  must  satisfy 
the  committee  that  they  have  obtained  the  consent  of 
the  public  department  (within  whose  province  it  ftills  to  su- 
perintend the  interests  affected)  to  the  proposed  metbod  of 
dealing  with  those  interests.  The  usual  evidence  for  this 
purpose  consists  of  the  letter  or  other  document  eml)odying 
the  consent  of  the  proper  officer  or  officers  of  tlie  depart- 
ment in  question,  which  is  put  in  by  tlie  promoters ;  and  then 
some  officer,  clerk,  cSrc.  of  the  department  is  called  to  prove 
that  it  is  actually  what  on  the  face  of  it  it  purports  to  be. 
Where  evidence  is  produced  on  the  other  side  impugning 
the  authenticity  of  the  document  in  question,  tliis  may 
make  it  necessary  for  tlie  parties  relying  upon  it  in  their 
turn  to  give  some  further  evidence  in  support  of  its  authen- 
ticity. .  ,      , 

If  the  promoters  are  not  prepared  with  the  ncccssarj' 

(/)  See  case  of  Scottish  Central  Railway,  Group  (DD). 
o  o  2 


cccxvi  Ai^pendix. 

evidence  of  the  consent  when  it  is  required  by  the  com- 
mittee, the  latter  will  yet  give  time  for  its  production,  (g) 

The  committee  will  not,  it  seems,  stop  the  investigation 
of  a  scheme,  even  on  the  positive  refusal  of  the  department 
whose  consent  is  necessary  to  sanction  some  particular  part 
of  that  scheme,  but  will  themselves  communicate  with  the 
department  in  question,  (h) 

Srd.  The  formal  proof  is  generally  furnished  by  the  secre- 
tary or  solicitor  of  the  company,  who  puts  in  the  necessary 
documents,  such  as  the  lists  of  assents,  dissents  and  neuters, 
&c. 

The  only  difficulty  that  can  be  felt  on  this  part  of  the  case 
is  as  to  who  may  be  considered  as  having  a  local  interest 
in  the  line  or  not.  Shareholders  resident  in  the  neighbour- 
hood may,  of  course,  be  considered  to  possess  such  interest, 
as  likewise  traders  and  others  whose  course  of  business,  &c. 
would  lead  them  to  use  the  line  beyond  the  world  in  ge- 
neral. 

2nd.  Of  rebutting  evidence.  If  a  line  before  the  com- 
mittee go  into  no  evidence  on  a  particular  question,  which 
is  afterwards  opened  by  a  rival  line,  the  former  may  pro- 
duce evidence  to  rebut  the  case  made  out  by  the  rival  line 
on  such  question,  but  if  the  first  line  opens  a  particular  ques- 
tion, but  does  so  imperfectly,  they  are  not  afterwards  en- 
titled to  amend  their  case  in  this  respect,  as  they  ought  to 
have  brought  forward  the  whole  of  their  evidence  in  the 
first  instance,  (i) 

In  addition  to  the  evidence  brought  forward  by  the  pi'o- 
moters  or  opponents  of  a  railway  bill  to  substantiate  their 
views  and  statements,  the  committee  may,  for  their  own 
satisfaction,  require  witnesses  to  be  examined  on  any  ques- 
tion that  arises  in  the  course  of  the  proceedings  which  they 
consider  has  not  been  sufficient!}'  established  or  explained 
by  the  endence  adduced.  And  if  a  member  of  parliament 
desii-e  to  give  his  evidence  to  the  committee  on  any  subject 
connected  with  the  measure  under  their  consideration,  he 
may  be  called  and  examined  by  them  with  respect  to  such 
subject,  (/c) 

(g)  See  ante,  p.  ccxliv. 

(h)  See  ante,  p.  ccxlv. 

(i)  Ridd.  Pari.  Piact.  168.  See  the  case  of  the  London  and 
Brighton  Railway,  Group  (IMiM),  Supp,  to  Votes  of  Commons, 
1845,  p. 1542. 

(k)  See  Ridd.  Pari.  Pract.  ib. 


Parliamentary  Practice.  cccxvii 


Section  VI. 

OF  THE  OPPOSITION  TO  A  RAILWAY  BILL,  AND 
THE  EVIDENCE  ADDUCIBLE  IN  SUPPORT 
THEREOF. 

1.  Of  the  Locus  Standi. 
(1.)  As  regards  Interest. 

(1st.)  Competing  Lines. 
(2ndly.)  Landowners,  &c. 
(2.)  As  regards  the  petition. 

(1st.)  Time  of  Presentation. 
(2ndly.)  Requisites,  &c. 

2.  Of  the  Grounds  of  Opposition,  and  the  Evidence  ad- 

missible in  Support  thereof. 
(1st.)  As  to  the  Character  of  the  Line. 
(2ndly.)  Of  the  Character  of  the  Evidence  admissible 

for  the  purpose  of  setting  up  a  new  Line. 


1.  Of  the  Locus  Standi. 

(1.)  The  parties  entitled  in  regard  of  their  interest  to  be 
heard  against  a  proposed  bill  are  mainly  divisible  into  two 
classes,  competing  lines  and  landowners,  &c.,  with  whose 
property  the  proposed  line  is  calculated  to  interfere. 

(1st.)  Competing  lines.  What  constitutes  a  competing 
line  is  hardly  susceptible  of  any  exact  legal  definition.  Lines 
proposing  to  run  between  the  same  termini,  or  substantially 
through  the  same  line  of  country,  would  of  course  be  such; 
and  generally  any  lines,  it  should  seem,  might  be  considered 
to  bear  that  character  which  were  intended  to  accommodate 
the  same  traffic,  and  which,  consequently,  must  mutually 
draw  traffic  from  each  other.  Lines  nn'glit  be  competing 
inter  se  in  regard  of  certain  classes  of  traffic  and  not  in 
others,  or  again,  in  regard  of  one  portion  of  the  distance 
they  were  intended  to  run,  and  not  for  anotlier.  In  such 
case  the  sphere  of  their  mutual  opposition  before  the  com- 
mittee was  narrowed  proportionably.  («) 

(a)  For  instances  of  lines  held  to  be  competing  or  not,  and 
either  wholly  or  partially,  see  proceedings  of  committee  on 
Group  (D),  where  the  Blackburn,  Burnley,  Accrington  and 
Colne  Extension  line  was  held  not  to  be  a  competing  line  with 
the  Blackburn,  Darwen  and  Bolton.     See  also  proceedings  of 


cccxvili  Appendix. 

Competing  lines  that  were  referred  to  the  same  committee 
acquired  their  locus  standi  by  virtue  of  that  very  reference. 
Even  where  the  promoters  of  any  such  Hne  had  failed  be- 
fore the  standing  orders  committee,  by  reason  of  their  not 
having  complied  with  some  of  the  standing  orders,  they 
might  still  be  heard  to  oppose  as  a  project,  {d) 

And  the  same  where  the  preamble  of  a  bill  for  a  com- 
peting line  had  been  negatived  by  the  committee  on  the 
group  of  bills  of  which  it  formed  one,  on  the  ground  of  an 
error  in  the  section,  which  rendered  the  scheme  impracticable 
•without  a  greater  deviation  from  the  levels  described  in  the 
section,  than  what  the  stat.  8  Vict.  c.  20,  permitted,  (e)  But 
wherever  the  projectors  had  not  deposited  their  plans  and 
sections  they  were  not  permitted  to  be  heard  as  a  competing 
line.  Thus  in  the  committee  on  group  (FF)  it  was  held 
that  the  provisional  directors  and  subscribers  to  the  Cale- 
donian Extension  Railway  could  not  be  heard  against  the 
Edinburgh  and  Hawick  Railway  bill,  inasmuch  as  they  had 
not  deposited  any  plans,  &c.,  or  presented  any  petition  to 

committee  on  Group  (E),  where  the  Northumberland,  and  New- 
castle and  North  Shields  (Tynemouth  Extension)  were  held 
competing  lines.  So  likewise  the  committee  on  group  (  DD)  de- 
cided that  the  Glasgow,  Dumfries  and  Carlisle  and  the  Edinburgh 
and  Northern  Railway  had  not  such  a  direct  interest  as  entitled 
them  to  oppose  the  preamble  of  the  Scottish  Centrjl  Railway  bill, 
though  the  Edinburgh  and  Glasgow  were  allowed  to  be  heard 
against  the  Caledonian.  So  likewise  it  was  decided  by  the 
committee  on  group  (KK)  that  the  Liverpool.  Ormskirk  and 
Preston  was  a  competing  line  with  the  Rainforth  and  RufFord 
branches  of  the  Liverpool  and  Manchester  Railway  Company, 
and  with  the  Southport  and  Euxton. 

And  in  the  committee  on  group  (  W)  of  railways,  counsel  for 
the  Wakefield,  Pontefract  and  Goole  Railway  bill,  applied  to 
be  heard  against  the  Doncaster  and  Goole  Railway  bill  then 
before  the  committee,  if  the  latter  company  proposed  to  take  any 
of  the  traflSc  from  Wakefield,  and  contended  that  in  that  case 
they  were  a  competing  line.  JMr.  Austin  slated  that  they  did 
not  intend  to  take  any  of  the  Wakefield  traffic.  The  counsel 
making  the  application  then  withdrew. 

(d)  See  the  case  of  the  Direct  Northern,  ante,  App.  IL,  p. 
ccxx.  A  similar  decision  was  come  to  by  the  committee  on  group 
(K)  of  railways  in  the  case  of  the  Eastern  Union  and  Norwich, 
No.  2,  and  by  the  committee  on  group  (U)  in  the  case  of  the 
Hull  and  Gainsborough. 

(e)  See  the  case  of  the  Cambridge  and  Lincoln  Railway, 
ante,  p.  ccxxvi.  et  seq. 


Parliamentary  Practice.  cccxix 

parliament.  A  similar  decision  was  come  to  by  the  com- 
mittee on  group  (SS)  of  railways,  in  the  case  of  certain 
parties  who  had  petitioned  against  the  Coventry  and 
Nuneaton  line ;  and  also  by  the  committee  on  group  (O), 
in  the  case  of  a  rival  company  who  had  petitioned  against 
the  Grand  Junction  Railway  (Potteries  branch)  bill.  (  /') 

What  a  company  so  circumstanced  could  not  do  directly 
they  were  not  allowed  to  do  indirectly.  Where,  therefore, 
as  was  often  the  case,  they  procured  a  landowner  to  lend 
them  the  use  of  his  name,  and  under  colour  of  that  at- 
tempted to  prove  their  case  against  a  rival  line,  the  com- 
mittee, if  the  connection  between  the  parties  could  be  proved 
to  their  satisfaction,  (and  one  main  test  of  this  was  the  fact 
that  all  expenses  of  the  opposition  were  to  be  borne  by 
the  company,)  would  not  allow  the  landowner  to  go  into 
evidence  intended  solely  to  prove  the  case  of  the  provi- 
sional company,  (g) 

So  likewise  a  company  that  had  abandoned  a  part  of  its 
project  was  held  afterwards  to  have  no  locus  standi  on  any 
question  affecting  only  the  part  of  the  scheme  so  aban- 
doned, {h)  And  the  same  of  a  company  the  preamble  of 
whose  bill  had  been  negatived  on  the  merits,  (i)  as  it  could 
no  longer  be  supposed  to  exist.  (J) 

The  decisions  of  the  Lords  as  to  what  constituted  com- 
peting lines  seem  to  have  rested  upon  much  the  same  prin- 
ciples as  those  of  the  Commons,  except  that  in  the  upper 
house  parties  to  entitle  themselves  to  be  heard  as  a  com- 
peting line  against  a  bill  must  have  presented  a  petition  for 
that  purpose. 

In  general,  though  the  rule  was  not  without  its  excep- 
tions (/c),  select  committees  of  the  House  of  Lords  during 

(f)  See  further,  Supp.  to  Votes,  1845,  pp.  1177,  1250, 1.300. 

(g)  See  case  of  petitioners  against  the  Edinburgh  and  Hawick 
Line,  Supp.  to  Votes,  p.  1244,  1245  ;  and  case  of  petitioners 
against  Edinburgh  and  Northern  Line,  ih.  1250. 

(/^)  See  the  case  of  the  South-Easlern,  ante,  App.  IL  p.  ccxlv. 
(i)  See  the  case  of  the  North  Kent,  ante,  ib. 

C;)  lb. 

(k)  In  the  case  of  the  South-Eastern  Railway  and  Deal  Ex- 
tension, before  a  select  committee  of  Lords,  opposition  was 
offered  to  the  preamble  of  the  bill  by  tlie  promoters  of  a  project 
which  appeared  in  Group  (A)  in  the  House  of  Commons  as  a 
bill  the  preamble  of  which  the  committee  of  tiiat  house  decided 
not  to  have  been  proved.  The  select  committee  decided  that 
the  petitioners  had  no  locus  standi.     So  also  in  the  case  of  the 


cccxx  Appendix. 

the  last  session  would  appear  to  have  admitted  to  a  locus 
standi  projects  which  had  been  thrown  out  by  the  House 
of  Commons  either  on  the  merits  or  on  the  standing  orders 
of  that  house. 

A  section  of  the  shareholders  of  a  company  had  no  locus 
standi  to  oppose  a  bill  (group  BB.,  Waterford  and  Kilkenny 
Railway),  (w) 

A  line  that  would  otherwise  have  been  heard  in  the 
character  of  a  competing  line,  might,  by  entering  into  an 
agreement  to  that  effect,  deprive  itself  of  such  character, 
and  so  be  shut  out  from  offering  opposition  to  another,  the 
agreement  being  recognized  by  the  committee.  So  held  in 
case  of  petition  of  Great  Southern  and  Western  Railway 
against  Waterford  and  Limerick,  (w) 

(2dly.)  In  general,  owners  or  occM/?iers  of  lands,  buildings, 
&c.  liable,  &c.  to  be  cut  through  or  physicall}'  injured  by  a 
proposed  railway,  were  held  entitled  to  be  heard  in  opposi- 
tion to  the  bill  for  that  purpose.  But  where  property  was 
physically  uninjured,  there  whatever  the  amount  of  damage 
that  the  railway  might  be  calculated  in  other  respects  to  in- 
flict on  the  owner,  he  had  no  locus  standi  to  be  heard  be- 
fore the  committee. 

As  a  general  rule,  those  whose  names  appear  in  the 
schedule  of  a  bill  would  seem  to  have  a  right  to  be  heard 

Norwich  and  Brandon  Railway  (Diss  and  Dereham  branches), 
before  a  select  committee  of  Lords,  when  opposition  was  offered 
by  the  promoters  of  a  project  which  had  been  thrown  out  in  the 
lower  house  on  the  standing  orders,  but  had  been  allowed  a /ocks 
standi  before  a  committee  of  that  house,  in  consequence  of  the 
practice  therein  followed  of  admitting  an  appearance  as  projects 
for  schemes  similarly  situated,  the  select  committee  decided  that 
the  petitioners  had  no  locus  standi.  So  also  in  the  case  of  the 
Leeds  and  West  Riding  Railway,  before  a  select  committee  of 
Lords,  (the  Duke  of  Cleveland,  chairman,)  on  counsel  for  some 
landowners  cross-examining  a  witness  on  a  rival  scheme,  which 
had  been  rejected  by  a  committee  of  the  House  of  Commons,  the 
select  committee  passed  the  following  resolution  :  — 

"  That  counsel  in  their  cross-examination  be  instructed  to 
confine  themselves  to  the  demerits  of  the  present  bill,  but  not  to 
enter  into  the  merits  or  demerits  of  any  other  scheme  for  which 
no  counsel  appears."     Ridd.  Pari.  Pract.  pp.  207,  208. 

(m)  Ibid.  p.  210. 

(n)  Supp.  to  Votes,  1845,  p.  1496  ;  but  see  Supp.  to  Votes, 
1845,  pp.  1527  and  1529,  where  committee  refused  to  reco2;nize 
the  agreement  of  the  engineers  of  the  Dundalk  and  Enniskillen 
and  Newry  and  Enniskillen  Railway  Companies. 


Parliamentary  Practice,  cccxxi 

against  the  preamble  of  such  bill,  and  this  whether  their 
property  will  be  actually  required  for  the  purposes  of  the 
proposed  railway  or  not.  Case  of  Midland  Railway  (Not- 
tingham and  Lincoln)  before  a  select  committee  of  Lords,  (o) 
The  same  was  held  in  the  case  of  the  West  Cornwall  Rail- 
way, group  (N.)  There  a  landowner  whose  name  ap- 
peared in  the  schedule  petitioned  against  the  preamble  of 
the  bill.  The  bill  being  before  the  committee,  the  pro- 
moters offered  to  deviate  the  line  so  as  not  to  touch  the  pe- 
titioner's property,  and  to  strike  his  name  out  of  the  sche- 
dule, and  submitted  that  under  such  circumstances  the  pe- 
titioner had  no  longer  any  locus  standi  before  the  committee. 
The  chairman,  having  consulted  with  the  Speaker,  inti- 
mated that  the  Speaker  was  clearly  of  opinion  that  this  did 
not  destroy  the  locus  standi  of  the  petitioner. 

Under  this  same  head  must  be  classed  the  trustees  of  turn- 
pike roads,  commissioners  of  navigations,  and  other  parties 
interested  in  the  pre-existing  avenues  of  communication  by 
land  or  water,  which  the  proposed  line  of  railway  was  in- 
tended to  cross,  &c. ;  the  owners,  therefore,  of  a  canal  could 
not  be  heard  on  a  petition  which  simply  stated  as  the  ground 
of  complaint  the  intention  of  the  railway  company  to  dry  up 
another  canal,  and  thereby  consequentially  injure  them,  {p') 

A  distinction,  however,  it  should  be  remarked,  has  been 
made  between  Scotch  and  English  trustees  in  one  respect, 
viz.  that  the  former  have  in  some  cases  been  admitted  to 
be  heard,  not  merely  for  the  protection  of  their  roads,  but 
likewise  to  procure  the  insertion  of  clauses  for  their  com- 
pensation in  case  of  any  diminution  of  toll,  consequent  on 
the  construction  of  the  railway.  This  distinction  rested  on 
the  ground  that  the  trustees  of  Scotch  roads  ordinarily  in- 
curred a  personal  liability  in  regard  of  the  road  debts. 

A  further  distinction,  it  may  be  proper  here  to  remark, 
has  been  drawn  in  some  instances,  between  the  case  of  land- 
owners, and  canal  proprietors  and  others  interested  in  the 
existing  modes  of  transit,  the  latter  being  held  entitled  to  op- 
pose simply  so  far  as  regarded  their  own  individual  compen- 
sation, and  to  the  extent  of  securing  themselves  tlie  adequate 
protection  against  injury  from  the  railway,  but  not  to  be 
heard  generally  against  the  preamble.  (See  the  case  of  the 
Stroud  Navigation  Company  in  the  proceedings  of  the  com- 

(o)  Ridd.  Pari.  Pract.  p.  206. 

(p)  Case  of  Syston  and  Peterborough  Railway  Company, 
cited  in  Coll.  on  Railways,  App.  p.  51. 
o  o  5 


cccxxii  Apfendix. 

mittee  on  group  (P.)  (q)  So  likewise  the  committee  on 
group  (Z)  decided  that  the  Grand  Canal  Company  could  only 
be  heard  as  such  and  in  no  other  capacity,  and  consequently 
that  their  counsel  could  not  pursue  a  line  of  examination 
calculated  to  show  that  a  new  and  better  line  could  be  made 
than  that  before  the  committee,  (r) 

In  some  cases  a  pure  incorporeal  interest  in  land  has 
been  deemed  sutiicient  to  entitle  a  party  to  be  heard  before 
a  committee.  Owners  of  ferries,  for  instance,  have  always 
been  heard  to  oppose  where  a  railway  was  intended  to 
traverse  the  limits  of  their  ferry,  on  the  ground,  of  course, 
of  the  interference  with  their  tolls,  though  semble  it  might 
be  otherwise  when  the  railway  is  intended  to  run  at  a  dis- 
tance from  their  fern',  as  their  interest  then  is  reduced  to 
one  of  competition  only,  (s) 

So  likewise  in  the  committee  on  group  (DD),  certain  in- 
habitants of  Perth  were  heard  by  counsel  against  the  Scot- 
tish Central  Railway,  on  the  ground  of  its  being  intended 
to  occupy  a  portion  of  a  place  called  the  South  Inch,  used 
by  the  inhabitants  as  a  place  of  recreation,  &c.,  and  in  re- 
gard of  which  they  could  at  most  claim  nothing  but  an 
easement. 

The  rights  of  owners  of  tolls,  &c.,  to  be  heard  before  par- 
liament, in  so  far  as  regards  the  insertion  in  a  proposed 
railway  bill  of  clauses  for  their  own  protection,  has  been  re- 
cognized in  various  instances.  Thus,  in  group  (V),  Great 
Grimsby  and  Sheffield  Junction  Railway,  the  commissioners 
of  Gainsborough  Bridge,  who  had  petitioned  for  the  intro- 
duction of  a  clause  in  the  bill  for  the  above-mentioned  rail- 
•waj',  which  would  secure  thein  the  adequate  compensation 
for  any  loss  sustained  by  them  from  a  diminution  of  toU 
consequent  on  the  railway  passing  through  their  property, 
and  interfering  with  their  right  of  ferry,  which  had  originally 
existed  by  license  from  the  crown,  were  held  entitled  to  have 
a  clause  inserted  in  the  bill  for  that  purpose  ;  [f)  and  in 
another  case,  (group  (S),  Ballymena  and  Belfast  Railway), 
■where  a  corporation  w-as  in  the  enjoyment  of  certain  harbour 
dues,  secured  to  them  by  several  acts  of  parliament,  it  was 
decided  that  they  had  a  right  to  be  heard  on  their  petition 
against  a  proposed  line  of  railway,  which,  if  constructed  as 
proposed,  threatened  to  interfere  with  such  dues,  by  enabling 

(9)  Supp.  to  Votes,  p.  1300. 
(?)  See  Supp.  to  Votes,  1845,  p.  1101. 
(s)  See  ante,  App.  II.  p,  ccxlv. 
(£)  Ridd.  Pari.  Pract.  p.  215. 


Parliamentary  Practice.  cccxxiii 

parties  to  evade  the  payment  of  them,  so  far,  that  is  to  say, 
as  regarded  the  insertion  of  a  clause  in  the  bill  for  their  pro- 
tection, (m) 

A  party  who  was  a  shareholder  in  a  line,  was  held  to 
have  no  loais  standi  to  be  heard  against  a  line,  though  pos- 
sessed of  an  ipterest  that  would  otherwise  have  given  him 
this  right,  (j-) 

The  rule  requiring  a  physical  injury  to  property  to  con- 
stitute a  locus  standi  before  a  committee,  must  not  be  un- 
derstood as  of  necessary  universal  application,  but  as  liable 
under  particular  circumstances  to  exception.  These  cir- 
cumstances do  not  admit  of  being  reduced  to  any  general 
rule,  though  for  the  most  part  where  the  rule  has  been  re- 
laxed, it  would  seem  to  have  been  done  either  on  grounds 
of  public  policy,  or  from  a  consideration  of  the  extreme 
hardship  of  the  case  made  out  by  the  petitioners ;  as  for  in- 
stance, where  there  has  been  reason  to  apprehend  danger  or 
inconvenience  to  the  public,  or  any  considerable  section  of 
it,  a  deterioration  of  the  property  of  any  large  body  of  per- 
sons, and  the  like.  The  inliabitants  of  Falmouth,  for  in- 
stance, who  liad  petitioned  against  the  Cornwall  Railway, 
on  the  ground  of  its  not  affording  them  that  direct  commu- 
nication with  the  metropolis  to  whicli  they  contended  that 
they  were  entitled  on  grounds  of  national  policy,  as  the 
most  western  harbour  and  packet  station  of  the  kingdom, 
were  admitted  by  a  select  committee  of  lords  to  be  heard 
against  the  bill,  and  to  set  up  generally  another  and  more 
direct  line.  In  the  committee  on  group  (L),  again,  coun- 
sel was  allowed  to  be  heard  against  the  Guildford,  Chi- 
chester and  Portsmouth  line,  on  behalf  of  certain  inha- 
bitants of  Portsmouth,  who  had  petitioned  against  the  bill 
for  the  above  line,  on  the  ground  that  if  it  were  con- 
structed as  proposed,  it  would  seriously  deteriorate  their 
property  in  the  town,  though  none  of  them  professed  that 
their  property  would  undergo  any  physical  injury  from  the 
construction  of  the  proposed  line.  (//)  And  in  group  (V), 
where  the  bill  for  a  railway  was  opposed  by  a  l)ody  of  three 
hundred  inhabitants  of  the  town  of  Nottingliam,  on  the 
ground  of  such  railway  crossing  on  a  level  a  public  road  at 
the  entrance  of  the  town,  and  along  which  road  vast  num- 
bers of  persons  were  hourly  passing  and  repassing,  the 

(u)  Ridd.  Pari.  Pract.  p.  215. 

(i)  Trent  Valley  Railway  Bill,  Supf.  to  Votes,  1845,  p. 
290  ;  and  Waterford  and  Limerick  Railway,  ib.  p.  1497. 
(2/)  Supp.  to  Votes,  p.  1310. 


cccxxiv  Appendix. 

locus  standi  of  the  petitioners  was  at  once  recognized  by  the 
committee,  (a)  So  likewise  where  the  vestry  and  inhabitants 
of  a  parish  (Clerkenwell)  petitioned  against  the  preamble 
of  a  bill  for  making  a  certain  railway,  on  the  ground  that  the 
construction  of  such  railway  would  inflict  a  serious  injury 
on  the  regular  trade  of  the  parish,  consisting  for  the  most 
part  of  watch  and  clock  manufacturers,  by  reason  of  the 
vibrations  consequent  on  the  passage  of  the  trains  affecting 
the  works  of  their  watches,  &c.,  so  much  as  to  render  their 
accurate  adjustment  impossible,  the  committee  on  group  (X) 
decided  that  the  petitioners  had  a  sufficient  locus  standi  to  be 
heard  and  give  evidence  against  the  preamble  of  the  bill.  (6) 

In  another  case,  where  a  petition  was  presented  against  a 
railway  by  the  mayor,  burgesses  and  inhabitants  of  the 
borough  of  Saltash,  the  substance  of  which  petition  was 
that  the  proposed  crossing  by  railway  trains  over  a  river 
near  the  town  of  Saltash,  would  be  attended  with  great  in- 
jury to  the  navigation  of  such  river,  and  danger  to  the 
shipping  using  the  same,  a  select  committee  of  Lords, 
(Earl  of  Ellenborough,  chairman),  decided  that  the  pe- 
titioners had  such  a  locus  standi  as  entitled  them  to  be 
heard  and  give  evidence  against  the  preamble  of  the  bill,  (b) 

In  another  case  last  session,  where  opposition  was  made 
by  the  inhabitants  of  a  town  to  a  bill  for  a  railway  going 
to  the  same,  on  the  ground  that  it  was  not  approached  by 
such  railway  in  so  advantageous  a  manner  for  the  inhabi- 
tants as  might  have  been  the  case  had  another  course  been 
chosen,  the  petitioners  were  allowed  by  the  committee  to 
prove  that  the  proposed  line  of  railway  was  not  the  best  for 
their  interests,  but  they  were  restricted  from  going  into 
detail  or  giving  evidence  with  regard  to  any  specific  line. 
The  case  alluded  to  was  that  of  the  Norwich  and  Brandon 
Railway  (Diss  and  Dereham  Branches),  and  the  decision 
was  given  by  a  select  committee  in  the  House  of  Lords,  (c) 

And  in  the  committee  on  group  (EE),  the  town  of 
Brechin  was  permitted  to  be  heard  against  the  Aberdeen 
Railway  bill.  As  likewise  in  the  committee  on  group  (SS) 
the  inhabitants  of  Nuneaton  were  heard  to  oppose  the 
Coventry  and  Nuneaton  line. 

This  principle  would  clearly  not  extend  to  towns,  Src,  at 
a  distance  from  the  line  of  railway.  Thus  in  the  case  of  the 
Edinburgh   and   Northern   Railway,  group  (FF),  the  in- 

(a)  Ridd.  Pari.  Pract.  p.  189. 

(b)  lb.  p.  190. 

(c)  lb.  p.  192. 


Parliamentary  Practice.  cccxxv 

habitants  of  several  towns  situate  in  the  districts  through 
wliich  the  line  lay,  but  at  distances  varying  from  twenty 
to  thirty  miles  from  its  route,  opposed  the  preamble  of  the 
bill  on  the  ground  that  the  railway  in  question  did  not  af- 
ford so  accessible  a  means  of  communication  for  such 
towns  with  Edinburgh  as  it  might  have  done.  An  objection 
■was  taken  to  the  opposition  on  the  ground  that  the  towns  in 
question  were  situated  at  so  great  a  distance  from  the  line, 
as  to  preclude  the  possibility  of  their  being  affected  by  its 
success  or  defeat.  The  committee  decided  that  the  pe- 
titioners could  not  be  heard,  (c) 

2.  Of  the  petition,  and  herein,  \st,  of  the  time  of  its  pre- 
sentation, and  its  contents,  &;€.  The  petition  must  have  been 
presented  within  three  clear  days  before  the  meeting  of  the 
committee  on  the  bill  against  which  it  was  presented.  By 
this  was  meant  not  three  clear  days  before  the  committee 
commenced  its  sitting,  but  before  it  was  appointed  to  meet 
on  the  particular  bill.  This  period  was  often  much  pos- 
terior to  that  of  the  first  sitting  of  the  committee,  as  in  the 
case  of  a  group  of  railways  referred  to  the  same  committee, 
it  often  happened,  that  when  the  committee  first  commenced 
sitting,  some  of  such  schemes  had  not  been  read  a  first  time 
or  even  assumed  the  shape  of  bills,  so  that  some  time  neces- 
sarily intervened  before  they  could  be  formally  committed,  {d) 

Where  a  petition  against  a  bill  was  presented  later  than 
requisite,  a  committee  determined  that  they  had  no  power 
to  entertain  it,  though  it  was  referred  to  them  by  order  of 
the  House,  (e) 

(2dly.)  Of  general  requisites  of  petition.  It  must  have  spe- 
cified distinctly  the  grounds  of  complaint,  and  those  suffi- 
cient to  give  a  locus  standi.  Thus,  where  a  petition  was  in 
point  of  fact  signed  by  the  parties  in  the  capacity  of  trustees 
of  different  turnpike  roads,  (they  as  landowners  being  all  as- 
senting), but  this  did  not  appear  on  the  face  of  the  petition, 
it  was  held,  that  as  no  landowner  had  signed  the  petition  as 
such,  and  no  opposing  name  of  a  landowner  appeared  upon 
the  petition,  whilst  no  mention  was  made  therein  of  the  se- 
veral trusts  in  respect  of  which  the  parties  were  interested,  the 
petition  was  informal  and  could  not  be  proceeded  with.  {/) 

(c)  Ridd.  Pari.  Pract.  p.  205. 

(d)  See  ti)e  case  of  Mr.  Nias,  ante,  App.  II.  p.  ccxxxv.  and 
that  of  Mr.  Dimsdale,  (Group  S),  Supp.  to  Votes,  p.  608. 

(e)  See  Coil,  on  Railw.  p.  50.  There  was  no  special  order  of 
the  House  in  this  case. 

(/)  See  Scottish  Central  Railway,  Supp.  to  Votes,  1845,  p. 
895  (Group.  DD). 


cccxxvi  Appendix. 

And  where  a  canal  company  {g),  who  were  included  in  the 
schedule  to  a  railway  bill,  and  whose  land  was  intended  to 
be  cut  through  by  the  railway,  omitted  this  in  their  petition, 
but  alleged  an  intention  on  the  part  of  a  railway  company  to 
dry  up  another  canal,  thereby  consequentially  injuring 
them,  they  were  held  to  have  no  locus  standi.  So  decided 
by  committee  of  Lords  (in  the  case  of  the  S3'ston  and 
Peterborough  Railway).  And  where  a  petition  was  pre- 
sented by  a  navigation  company  against  the  taking  up  of 
a  certain  canal  by  the  promoters  of  a  proposed  railway,  as 
being  prejudicial  to  the  petitioners'  interests,  the  committee 
decided  that  the  petition  could  not  be  read,  as  it  did  not 
refer  to  any  matter  or  clause  comprised  in  the  bill,  nor  was 
it  shown  by  it  that  the  transfer  of  the  canal  propert}'  to  the 
railway  had  yet  been  made,  {h) 

Where  parties  desire  to  be  heard  against  any  clause  or 
provision  in  a  railway  bill,  there  must  be  a  petition  presented 
referring  to  such  clause  or  provision,  and  distinctly  specifying 
the  ground  of  complaint  against  the  same.  Even  a  com- 
peting line  has  been  refused  to  be  heard  against  the  clauses 
of  a  bill  belonging  to  the  same  group  to  which  it  was  itself 
referred,  where  the  promoters  of  such  line  had  failed  to  pre- 
sent any  petition  specifying  their  grounds  of  complaint 
against  such  clauses,  (i). 

Where  it  is  so  intended,  the  petition  must  expressly  pray 
to  be  heard  by  counsel,  as  otherwise  counsel  cannot  be 
permitted  to  appear,  unless  where  the  House  make  an  order 
to  that  effect.  (A-) 

Where  the  petition  alleged  a  sufficient  ground  of  com- 
plaint to  constitute  a  locus  stuudi,  it  would  not  have  been 
vitiated  by  the  addition  of  other  matter;  and,  indeed,  where 
the  locus  standi  had  been  once  established,  parties  might  be 
heard  on  questions  of  consequential  damage  which  of  them- 
selves would  not  have  afforded  a  locus  standi.  {I) 

(o-)  Coll.  on  Railw.  Comps.  p.  51. 

(h)  Midland  Counties  Junction  and  Peterborough  Railway, 
group  (T),  Eidd.  Pari,  Pract.  p.  219. 

(i)  So  decided  in  committee  on  group  (AA"),  after  consulta- 
tion with  the  Speaker,  Ridd.  Pari.  Pract.  pp.  219,  220. 

(k)  See  case  of  Rev.  Mr.  Willan,  Supp.  to  Votes,  1845,  p. 
306. 

(/)  Coll.  on  Railw.  Comps.  p.  50  ;  as  to  how  petition  to  be 
signed,  see  ante,  p.  cclxxiv. 


Parliamentary  Practice.  cccxxvii 

2.  Of  the  Grounds  of  Opposition  and  the  Evidence 

ADDUCIBLE  IN  SupPORT  THEREOF. 

Competing  lines  put  in  their  maps  and  plans,  and  went 
into  evidence  in  support  of  their  own  case,  and  in  opposi- 
tion to  that  of  their  antagonists. 

A  competing  line,  as  a  general  rule,  was  not  allowed  to 
go  into  evidence  of  intended  branches,  &c.,  in  regard  of 
which  no  plans  had  been  deposited,  or  at  least  was  confined 
to  general  evidence  thereof,  and  this  even  though  such 
branches,  &c.,  were  recommended  in  the  report  of  the 
Board  of  Trade,  (m) 

Although,  in  general,  objections  to  the  plans,  sections, 
&c.,  ought  to  have  been  taken  before  the  committee  nn  the 
petition,  it  was  nevertheless  held  to  be  competent  for  one 
competing  line  to  show  that  such  an  amount  of  error  existed 
in  the  sections  of  another,  as  to  render  the  latter  scheme 
impracticable.  («) 

A  landowner,  in  opposing  a  bill,  might  go  into  evidence 
of  his  own  individual  grievances,  or  he  miglit  endeavour  to 
show  the  insufficiency  of  the  company's  estimates,  or  that 
their  project  was  impracticable,  &c.  but  he  could  not  take 
objections  on  the  ground  of  non-compliance  witli  tiic  stand- 
ing orders,  which  ought  to  have  been  taken  before  tlie  com- 
mittee on  the  petition,  (o)  In  the  committee  on  group  (L), 
an  objection  was  taken  on  behalf  of  a  petitioner,  to  the  plans 
and  sections  of  the  Direct  Portsmouth  Atmospiieric  Line, 
that  there  were  errors  in  them  of  such  extent  as  to  render 
the  scheme  impracticable,  without  exceeding  the  limits  of 
deviation  allowed  by  the  stat.  8  Vict.  c.  20,  s.  .  Notwith- 
standing the  opposition  of  the  counsel  for  the  bill,  the  com- 
mittee decided  on  entertaining  tlie  objection,  though  ulti- 
mately it  came  to  nothing,  the  error  being  proved  to  exist 
only  in  the  plans,  &c.,  deposited  in  the  Private  15111  OIKce, 
and  not  extending  to  those  deposited  witli  tiie  clerk  of  the 
peace,  in  pursuance  of  which  alone  the  comjjany  were  bound 
to  make  their  railway.     A  similar  objection  was  made  bc- 

(m)  In  the  committee  on  group  (B),  the  counsel  for  the  IF.ir- 
rogate  and  Ripon  line,  one  of  ihose  inclu.lcd  in  thai  \;vm\\t,  wns 
proceeding  to  examine  as  to  the  course  of  a  line  hulween  Kiiskilf 
and  Leeds  proposed  by  the  company,  sis  suggested  in  the  rei)(>rl 
of  the  Board  of  Trade,  but  plans  of  wliich  had  not  been  d<-. 
posited  ;  the  committee  decided  that  only  very  general  (|ucsli,.Ms 
should  be  asked  as  to  such  line.  See  also  ante,  Apji.  II.  \>. 
ccxxvi.  and  p.  ccxxxi. 

{n)  See  ante,  p.  ccxxvi. 

(o)  See  ante,  p.  ccxxvii. 


cccxxviii  /Appendix. 

fore  the  committee  on  group  (GG),  on  behalf  of  the  trus- 
tees of  the  Clyde,  to  the  Glasgow  Junction  Railway  Bill ; 
and  there  again  it  was  entertained  by  the  committee,  though 
on  going  into  the  evidence,  it  ultimately  came  to  nothing. 

And  where  certain  persons  sought  to  obtain  parliamentary 
powers  for  the  construction  of  two  new  portions  of  railway  on 
the  broad  gauge  to  form  a  junction  at  either  terminus  with  an 
existing  railway  termed  the  Hayle  Railway  on  the  narrow, 
the  whole  being  intended  by  the  promoters  to  constitute  one 
entire  line  of  railway  on  the  broad  gauge,  of  which  the  Hayle 
Railway  was  to  be  the  centre,  it  was  objected,  and  indeed 
substantiated,  on  behalf  of  an  opposing  landowner,  that  to 
carry  out  their  object  the  promoters  would  have  to  widen 
the  Hayle  line  so  as  to  adapt  it  for  the  broad  gauge,  and 
that  this  involved  the  laying  down  additional  rails,  &c.  on 
several  public  highways  which  were  crossed  by  the  Hayle 
line  on  a  level,  and  that  no  parliamentary  notice  having 
been  given  by  the  promoters  of  their  intentions  in  this  re- 
spect, the  project  was  impracticable.  Additional  objections 
were  also  taken  to  the  estimate,  curves,  gradients,  &c.  of  the 
new  portions  of  the  line;  eventually,  the  preamble  of  the 
bill  was  negatived,  (o) 

A  landowner  might  likewise  go  into  evidence  to  show  the 
existence  of  a  better  line  than  that  before  the  committee. 
The  only  question  was  as  to  the  character  of  the  line  which 
he  was  thus  entitled  to  set  up,  and  the  evidence  adducible 
for  that  purpose. 

(1st.)  As  to  the  character  of  the  line.  That  an  opposing 
landowner  might  show  an  improvement  of  the  line  before 
the  committee,  seems  to  have  been  undisputed.  A  more 
important  question,  and  one  which  was  the  subject  of  no 
little  discussion  in  various  instances,  was,  whether  he  might 
give  evidence  of  the  existence  of  a  better  line  through  a  dif- 
ferent line  of  country,  provided  it  were  between  the  same 
termini,  and  it  would  seem,  upon  the  whole,  that  it  was 
competent  for  him  to  do  so.  The  question  arose  before  the 
committee  on  group  (V),  in  the  course  of  the  examination 
of  a  witness,  on  the  petition  of  the  Duke  of  Devonshire 
against  the  iSTewark  and  Sheffield  Railway.  The  counsel 
for  the  Duke  contended  that  it  was  competent  for  the  op- 
ponents of  the  bill  to  show  that  the  proposed  line  was  un- 
necessary, inasmuch  as  there  was  a  better  and  shorter  line 
by  Retford  and  Worksop ;  the  committee  resolved  that  the 
opponents  of  the  bill  should  for  the  time  being  confine  their 
evidence  to  the  question  of  any  miprovement  of  the  pro- 

(o)  Group  (N),  West  Cornwall  Railway. 


Parliamentary  Practice.  cccxxix 

posed  line  before  the  committee ;  that  the  committee  would 
suspend  their  decision  on  the  preamble  of  the  said  bill  until 
they  heard  the  evidence  in  support  of  the  bill  between  Ches- 
terfield and  Sheffield,  and  then  they  would  take  into  con- 
sideration the  expediency  of  receiving  evidence  as  to  the 
best  railway  communication  between  Sheffield  and  Newark, 
keeping  in  view  the  importance  of  the  districts  to  be  tra- 
versed by  the  line.  Subsequently,  during  the  hearing  of 
the  case  of  the  Sheffield  and  Chesterfield  bill,  the  question 
was  again  raised,  when  the  committee  resolved  that  the 
opponents  of  the  bill  miglit  be  allowed  to  give  evidence 
against  the  preamble  by  showing  that  it  was  not  the  best 
line  that  might  be  made  between  the  termini  of  Chesterfield 
and  Sheffield.  So,  likewise,  the  committee  on  group  (0) 
decided,  in  the  case  of  the  Grand  Junction  (Potteries 
branch)  line,  that  opposing  landowners  might  go  into  the 
general  merits  of  a  rival  scheme  of  railway  accommodation 
for  the  district  of  the  Potteries,  and  also  might  show  that 
the  scheme  was  a  feasible  and  bona  fide  one,  there  being  a 
provisional  company,  supported  by  a  competent  body  of 
subscribers  actually  formed  for  its  construction.  And  a  com- 
mittee of  the  House  of  Lords  decided,  in  the  case  of  the 
Southampton  and  Dorchester  Railway,  that  opposing  land- 
owners appearing  there  for  the  first  time  might  set  up,  not 
by  plan  and  section,  but  by  general  evidence,  a  line  from 
Dorchester  to  Salisbury,  and  thence  to  Southampton,  which 
had  been  projected  by  a  company  that  did  not  appear,  {p) 

The  line,  however,  thus  sought  to  be  set  up  must,  it  is 
conceived,  have  been  substantially,  at  least,  coterminous 
with  the  line  before  the  committee.  A  landowner  opposing 
the  Cornwall  Railway  between  Plymouth  and  Fahnouth, 
sought  to  show  that  a  better  line  might  be  made  tlirough 
the  centre  of  Cornwall  from  Exeter  to  Fahnouth,  the  Corn- 
wall, as  it  was  argued,  being  but  an  extension  of  the  Soutii 
Devon  line  between  Exeter  and  Plymouth.  All  evidence 
of  the  proposed  new  line  was  rejected,  in  part  on  the  ground 
that  the  line  attempted  to  be  set  up  was  not  coterminous 
with  the  opposed  line.  On  appeal  to  the  Sjjeaker,  tliis  de- 
cision was  confirmed,  on  the  grounds  solely  that  the  line 
attempted  to  be  set  up  was  not  coterminous  with  the  op- 
posed line,  (q)     But  before  the  select  committee  of  lords 

(p)  Coll.  on  Railw.  A  pp.  p.  53.  A  similar  decision  was  come 
to  by  the  committee  on  group  (N),  ia  liie  case  of  a  liinilowner 
opposing  the  Cornwall  line. 

{q)  Coll.  App.  p.  52,  53.  A  contrary  decision  to  tins  w.i«, 
however,  it  is  believed,  come  to  by  a  select  conimilleu  of  Lord* 
during  the  last  session. 


cccxxx  Appendix. 

the  inhabitants  of  Fahnouth,  in  opposing  the  same  bill, 
were  permitted  to  give  evidence  of  such  proposed  central 
line. 

(2ndly.)  Of  the  character  of  the  evidence  admisublefor  the 
purpose  of'  setting  up  a  new  Line.  As  a  general  rule,  then, 
it  would  seem  that  a  landowner  was  only  allowed  to  go  into 
general  evidence  of  the  merits  of  the  proposed  line,  and 
could  not  enter  upon  detailed  inquiries  as  to  its  engineering 
character,  or  put  in  plans  and  sections,  whether  of  his  own 
or  of  some  company  in  the  back  ground,  that  had  not  been 
deposited  in  parliament. 

In  the  committee  on  group  (O),  for  instance,  Mr.  Bidder, 
the  engineer,  called  by  the  opponents  of  the  line  before  the 
committee,  being  under  examination,  and  an  objection  being 
taken  by  the  counsel  for  the  bill  to  the  line  of  examination 
pursued  by  the  opponent's  counsel,  tlie  committee  resolved 
that  Mr.  Bidder  be  allowed  to  give  his  general  opinion  upon 
the  merits  of  the  rival  scheme  as  compared  with  that  before 
the  committee,  but  that  he  confine  his  engineering  evidence 
to  the  objections  to  the  line  between  Stoke  and  Basford,  or 
Crewe,  i.  e.  the  line  before  the  committee.  So,  also,  the 
committee  on  group  (G  G)  decided,  in  the  case  of  the  peti- 
tion of  the  Clyde  Trustees  against  the  Glasgow  Junction  bill, 
that  the  petitioners  might  go  into  general  evidence  as  to 
the  merits  of  the  line  they  opposed,  but  that  they  could  not 
hear  evidence  as  for  a  competing  line  on  a  project  that  had 
deposited  no  plans  or  sections. 

In  the  committee  on  group  (V),  however,  the  Duke  of 
Devonshire  was  allowed  to  make  use  of  plans  and  sections 
deposited  by  a  company  who  were  not  included  in  the  same 
group  with  the  line  he  was  opposing,  for  the  purpose  of 
showing  that  the  line  might  more  advantageously  be  carried 
through  another  part  of  his  property,  (r)  This  was  earned 
still  further  by  the  committee  on  group  (W),  in  the  case  of 
Mr.  Smyth,  a  petitioner  against  the  Wakefield,  Pontefract 
and  Goole  Railway,  where  an  engineer  called  for  the  peti- 
tioner was  allowed  to  speak  to  plans  and  sections  that  had 
not  been  deposited  before  the  house,  for  the  purpose  of 
showing  the  existence  of  a  better  line.  This  decision,  how- 
ever, it  may  be  remarked,  was  subsequently  quoted  on  be- 
half of  the  opponents  of  a  bill  before  another  committee,  in 
order  to  induce  the  latter  to  accede  to  a  like  application,  but 
without  success,  the  latter  committee  refusing  to  follow  it. 

In  one  case  the  inhabitants  of  a  town  which  had  peti- 

(r)  Coll.  App.  p.' 52. 


Parliamentary  Practice.  cccxxxi 

tioned  against  a  line  of  railway  intended  to  approach  such 
town  were  allowed  to  make  use  of  evidence  closely  similar 
in  kind  to  the  putting  in  of  plans  and  sections,  (case  of  the 
Nottingham  and  Leicester  Railway, group  ( V) ).  There,  the 
inhabitants  of  Nottingham,  wlio  petitioned  against  the  pre- 
amble of  the  bill,  having  called  as  a  witness  an  engineer 
employed  by  them,  wished  to  prove  through  him  thar  by  a 
line  of  which  he  had  made  a  pencil  sketch  the  inconveni- 
ence of  crossing  on  the  level  a  road  in  the  vicinity  of  the 
town  would  be  avoided.  On  an  objection  being  taken  to 
the  reception  of  the  pencil  sketch  in  evidence  on  the  ground 
that  the  case  was  analogous  to  one  where  a  witness  is  ex- 
amined to  prove  the  execution  of  a  line  on  plans  which 
had  not  been  deposited,  the  committee  decided  that  the 
cases  were  not  anologous,  and  allowed  the  petitioners  to 
give  the  evidence  they  wished,  (s) 

And  again,  before  a  select  committee  of  Lords,  the  inha- 
bitants of  Falmouth,  in  opposing  the  Cornwall  Railway, 
were  permitted  to  examine  an  engineer  called  by  tliem  as  a 
■witness  from  a  section  which  he  held  in  his  hand  as  to  the 
engineering  character  of  a  line  through  the  centre  of  Corn- 
wall, and  which  they  contended  was  a  better  line  than  that 
before  the  committee,  though  they  were  not  allowed  to  put 
in  the  plans  and  sections  deposited  by  a  provisional  company 
organized  for  the  purpose  of  constructing  this  very  line. 

The  decisions  of  committees  of  the  upper  house  on  this 
subject  almost  invariably  confine  the  landowner  to  giving 
evidence  as  to  the  general  direction  of  a  better  line,  and 
prevent  him  from  going  into  the  details  of  any  particular 
project,  {t) 

In  the  case  of  the  Wilts,  Somerset  and  Weymouth  Rail- 
way before  a  select  committee  of  Lords  ( Lord  Keny on,  cliair- 
man),  the  committee  decided  that  a  landowner  could  not 
cross-examine  a  witness  with  a  view  to  sliow  that  a  jjarticular 
project,  which  had  no  parliamentary  existence,  was  a  prefer- 
able one  to  that  before  the  committee,  and  that  he  was  only 
entitled  to  be  heard  as  a  landowner  and  not  as  an  individual 
connected  with  or  interested  in  any  competing  project,  it) 

In  the  case  of  the  Southampton  and  Dorchester  Railway, 
before  a  select  committee  of  Lords  (Lord  Auckland,  chair- 
man), where  the  circumstances  were  similar  to  those  in  the 
last-mentioned  case,  the  decision  of  tlie  coTumiltee  was  the 
same.     And  in  the  case  of  tlie  Direct  Portsmoutli  Railway, 

(s)  Ridd.  Pari.  Pracl.  p.206. 
(0  lb.  p.  200. 


cccxxxii  Appendix. 

before  a  select  committee  of  Lords,  (Earl  of  Hardwicke, 
chairman),  the  committee  decided  that  the  landowners 
could  not  be  heard  with  regard  to  any  competing  line  not 
before  the  committee,  and  having  no  parliamentary  exist- 
ence. 

In  the  Erewash  Valley  Railway,  before  a  select  com- 
mittee of  Lords  (Lord  Lyttleton,  chairman),  landowners 
opposing  the  line  were  allowed  to  give  evidence  as  to  the 
general  direction  of  a  better  line  than  that  before  the  com- 
mittee, but  not  to  go  into  the  minutiae  of  any  particular 
project. 

A  landowner  was  not  permitted  to  go  into  the  above  line  of 
opposition  where  really,  and  in  point  of  fact,  he  was  seeking 
not  to  establish  an  independent  case  of  his  own,  but  to  set 
up  that  of  some  other  company,  which,  by  reason  of  its 
not  having  deposited  plans,  &c.,  could  not  be  heard  before 
the  committee  as  a  competing  line,  (z) 


Section  VII, 

PROCEEDINGS  RELATING  TO  BILLS  RE-INTRO- 
DUCED INTO  PARLIAMENT  DURING  THE  PRE- 
SENT SESSION,  (a) 

\,  Orders  of  House  of  Commons. 
2.  Resolutions  of  House  of  Lords. 


1.  Orders  of  House  of  Commons. 

Notices  in  newspapers  and  gazettes.  That  the  promoters 
of  such  bills  shall  give  notice  by  advertisement  for  six  suc- 
cessive weeks,  in  the  months  of  October  and  November,  in 
the  London,  Edinburgh  or  Dublin  gazette,  as  the  case  may 
be,  and  in  the  local  paper  or  papers  which  may  be  usually 
in  circulation  in  the  part  of  the  country  through  which  the 
line  of  railway  is  proposed  to  pass,  of  their  intention  to  pre- 
sent a  petition  for  the  re-introduction  of  any  such  bill.  (6) 

Committee  to  examine  whether  petition  he  the  same  as  that 
in  1845.  That  upon  any  petition  for  leave  to  bring  in  a 
railway  bill  which  shall  be  presented  to  the  house  during 
the  session  of  1846,  and  refen-ed  to  the  committee  on  peti- 

(s)  See  ante,  p.  cccxix, 

(u)  See  further,  post,  sect.  IX. 

(6)  H.  C.  43  a. 


Parliamentary  Practice.  cccxxxiii 

tions,  the  committee  do  examine  whether  the  said  petition 
be  the  same  in  substance  as  any  petition  for  the  same  pur- 
pose, and  from  the  same  parties,  which  was  presented  in 
the  session  of  1845  ;  and  in  that  case,  whether  any  bill 
brought  into  the  house  in  pursuance  of  such  petition  in  the 
session  of  1845,  was  pending  in  either  house  of  parliament 
on  the  termination  of  such  session ;  and  if  so,  whether  a 
subscription  contract,  as  required  by  the  standing  orders, 
binding  in  the  usual  way  the  subscribers  to  the  undertaking* 
has  been  entered  into  and  is  valid  at  the  time  of  such  in- 
quiry, and  whether  the  deposit  of  £5  per  cent,  upon  such 
subscription  is  lodged  in  the  manner  required  by  the  stand- 
ing orders,  {b) 

If  petition  be  the  same  as  in  1845,  standing  orders  to  be 
held  complied  with.  That  in  such  case,  and  on  proof  of 
such  notice  having  been  given  as  aforesaid,  and  in  case  it 
should  appear  that  such  bill  had,  at  the  end  of  the  session 
of  1845,  been  pending  in  the  House  of  Lords,  or  if  pending 
in  the  House  of  Commons,  had  been  ordered  to  be  engrossed, 
the  standing  orders  with  respect  to  any  such  bill  shall  be 
held  to  have  been  complied  with.(c) 

Time  between  second  reading  and  meeting  of  committee. 
That  the  time  between  the  second  reading  of  any  such  bill 
which  shall  be  brought  in  in  the  session  of  184G  and  the 
meeting  of  the  committee  thereon  be  shortened  to  three 
clear  days,  the  parties  giving  the  regular  notices  in  the  Pri- 
vate Bill  Office,  (d) 

Committee  to  examine  whether  the  bill  be  in  every  respect 
the  same  as  such  former  bill.  That  the  committee  on  any 
such  bill  do  examine  whether  the  bill  be  in  every  respect 
the  same  as  such  former  bill  at  the  last  stage  of  its  pro- 
ceeding in  this  house  in  the  session  of  1815,  and  that  in 
such  case  no  evidence  shall  be  received  by  sucli  conunitlee  ; 
but  that  on  the  reception  and  adoption  by  the  house  of  a 
report  from  such  committee,  that  the  bill  reft-rred  to  tiicni 
is  in  every  respect  the  same  as  such  former  bill  at  the  last 
stage  of  its  proceeding  in  this  house  in  the  session  of  1845, 
such  bill  may  be  ordered  to  be  engrossed  without  any  furlhcr 
proceeding  in  respect  thereof,  (c) 

From  a  purview  of  these  orders  it  would  seem  that  ihc 
evidence  to  be  adduced  by  the  promoters  of  the  class  of 
bills  in  question  before  the  committee  on  petitions  is  in  cer- 
tain respects  peculiar  to  that  class. 

(b)  H.  C.  43  b.  (d)  H.  C.  125  a. 

(c)  H.  C.  43  c.  (e;  11.  C.  88  a. 


cccxxxiv  Appendix. 

1st.  Proof  must  be  given  before  tlie  committee  of  tbe 
identit}'  of  the  petition,  &c.  with  that  presented  in  the  ses- 
sion of  1845  ;  for  which  purpose  such  petition  or  a  certified 
copy  of  it  must  be  produced  to  the  committee.  The  com- 
mittee must  also  be  satisfied  that  a  bill  brought  in  in  pursu- 
ance of  such  petition  was  pending,  &c.  on  the  termination 
of  the  session.  To  establish  this  point  the  proper  medium 
of  proof  is  an  inspection  of  the  journals  of  the  house  wherein 
the  bill  was  so  pending,  (i) 

The  project  having  passed  the  committee  on  petitions,  it 
still  remains  for  the  promoters  to  satisfy  the  committee  on  the 
bill  that  it  is  in  every  respect  the  same  as  the  former  bill  at 
the  last  stage  of  its  proceedings  in  the  House  of  Commons 
during  the  session  of  1845.  The  proper  evidence  to  esta- 
blish this  is  the  production  from  the  Private  Bill  Office  of 
the  paper  bill  preserved  there. 

2.  Resolutions  of  House  of  Lords. 

1.  That  any  bill  included  in  the  second  class  under  the 
standing  order  of  the  16th  August,  1838,  and  which  shall 
be  before  this  house  in  the  present  session,  but  shall  not  pass 
for  want  of  time,  shall  be  marked  by  the  chairman  of  com- 
mittees, and  shall  be  proceeded  with  in  the  ensuing  session 
if  such  bill  be  brought  from  the  commons  in  every  respect 
the  same  bill  as  that  which  shall  have  been  so  marked  by 
the  chairman. 

2.  That  any  bill  of  the  said  second  class  which  shall  have 
been  stopped  in  its  progress  through  the  House  of  Commons 
in  the  present  session  by  reason  of  want  of  time,  and  which 
shall  have  been  brought  up  to  this  house  in  the  ensuing  ses- 
sion marked  by  the  Speaker  of  that  house  as  having  been  so 
stopped,  shall  be  in  like  manner  received  by  this  house. 

3.  That  those  bills  which  shall  have  been  stopped  in  this 
house  and  so  marked  as  aforesaid  by  the  chairman  of  commit- 
tees, and  also  those  bills  which  shall  be  brought  up  for  the 
first  time  next  session  marked  by  the  Speaker  of  the  House 
of  Commons  as  aforesaid,  shall  be  proceeded  with  upon  the 
same  notices  as  would  have  been  required  by  this  house  un- 
der its  standing  orders  during  tbe  present  session  and  upon 
no  other  notice,  (fc) 

(i)  As  to  the  further  evidence  required  in  regard  of  any  such 
bill  before  the  committee  on  the  petition,  see  ante,  p.  cccvi.  et  seq. 

(k)  Minutes  of  Proceedings,  House  of  Lords,  4th  July,  1845, 
p.  740. 


Parliamentary  Practice. 
Section  VIII. 

COSTS  OF  PRIVATE  BILLS. 

1.  Of  Costs  in  the  House  of  Commons. 

2.  Of  Costs  in  the  House  of  Lords. 


1.  Of  Costs  in  the  House  of  Commons. 

In  the  House  of  Commons  the  statute  by  which  provision 
is  made  on  this  subject  is  the  stat.  6  Geo."  4,  c.  123,  which 
estabHshes  both  a  taxation  of  such  costs,  and  hkewise  a 
more  easy  means  of  recovering  the  same. 

To  consider  then,  1  st,  the  former  point,  viz.  the  taxation, 
the  stat.  s.  1,  enacts  that, 

If  any  petitioner  or  petitioners  for  a  private  bill  brought 
into  the  Commons  House  of  Parliament,  or  the  agent  or 
agents  of  any  such  petitioner  or  petitioners  shall  make  appli- 
cation to  the  Speaker  of  the  House  of  Commons  complain- 
ing of  the  amount  of  the  costs  and  expenses  charged  by 
any  parliamentary  agent  or  solicitor,  or  any  other  person 
employed  in  soliciting  or  preparing  such  bill,  or  in  comply- 
ing with  the  standing  orders  relative  thereto,  on  behalf  of 
any  such  petitioner;  or  if  any  parliamentary  agent  or  soli- 
citor, or  other  person  employed  in  soliciting  any  such  pri- 
vate bill,  or  in  preparing  the  same,  or  in  complying  with  the 
standing  orders  relative  thereto,  shall  make  application  to 
the  Speaker,  complaining  that  he  is  aggrieved  by  the  non- 
payment of  the  costs  and  expenses  charged  by  him  in  re- 
spect of  any  such  private  bill,  the  Speaker,  u])on  receiving 
any  such  application,  is  to'  direct  that  sucli  costs  and  ex- 
penses, so  far  as  the  same  shall  relate  to  the  House  of  Com- 
mons, shall  be  taxed  by  such  person  or  persons  as  the 
Speaker  shall  think  proper  to  appoint. 

The  person  so  appointed  for  the  taxing  of  such  costs  and 
expenses  is  to  tax  the  same,  and  to  report  to  tlie  Speaker 
the  amount  of  such  costs  and  expenses  wliicb  lie  shall  think 
fit  to  be  allowed  upon  such  taxation.  The  Speaker  is  then, 
upon  application,  to  deliver  to  the  person  or  persons  con- 
cerned therein  and  requiring  the  .same  a  certificate,  .signed 
by  himself,  expressing  the  amount  of  the  coaU  and  expenses 
allowed  by  such  report. 

The  person  so  ajjpointed  to  tax  such  costs  and  oxpenKOH 
is  authorised  to  demand  and  receive  for  such  fuxnlion  and 
report  such  fees  as  shall  be  from  time  to  time  fixed  l)y  any 
resolution  of  the  House  of  Connnons,  and  for  that  jiurposc 


cccxxxvi  Appendix. 

to  charge  the  amount  of  such  fees  at  the  foot  of  such  re- 
port, either  against  the  party  applying  for  such  taxation,  or 
against  any  party  complained  of,  or  in  such  proportions 
against  each  of  such  parties  as  such  person  so  taxing  such 
costs  may  think  fit. 

Such  certificate,  so  signed  by  the  Speaker,  is  conclusive 
evidence  of  all  demands  therein  certified,  and  the  party 
claiming  under  the  same  is  (upon  receiving  the  amount 
so  certified)  to  give  a  receipt  at  the  foot  of  such  certificate, 
and  such  receipt  is  a  suflScient  discharge  for  such  costs  and 
expenses. 

2dly.  Of  the  mode  of  recovering  such  costs,  Sfc.  provided 
by  the  statute.  If  any  petitioner,  agent  or  other  person 
liable  to  the  payment  of  such  costs  and  expenses  shall  re- 
fuse to  pay  the  amount  so  certified  bj'  the  Speaker  in  any 
action  which  shall  be  commenced  for  the  recovery  of  such 
costs  and  expenses,  such  certificate  so  signed  by  the  Speaker 
as  aforesaid  shall  have  the  force  and  efi'ect  of  a  warrant  to 
confess  judgment,  and  the  court  in  which  such  action  shall 
be  commenced  shall,  upon  motion  and  production  of  such 
certificate,  order  judgment  to  be  entered  up  for  the  sum 
specified  in  such  certificate,  in  like  manner  as  if  the  defend- 
ant or  defendants  in  any  such  action  had  signed  a  wan-ant 
to  confess  judgment  in  such  action  to  that  amount.  (/) — 
(S.2.)  

2.  Of  Costs  in  the  House  of  Lords. 

The  provisions  on  the  subject  of  costs  in  the  House  of 
Lords  are  very  similar  in  their  nature  to  those  in  the  Com- 
mons, though  in  certain  respects  more  comprehensive  ;  and 
first  as  to  the  taxation  of  such  costs.  If  any  petitioner  or  pe- 
titioners for  ox  against  a  private  bill  brought  into  the  House 
of  Lords,  or  passed  by  the  Commons  House  of  Parliament 
and  carried  up  to  the  House  of  Lords,  or  the  agent  or  agents  of 
any  such  petitioner  or  petitioners,  shall  make  application  to 
the  clerk  of  the  parliaments,  when  discharging  the  duties  of 
his  office  in  person,  or  in  his  absence  to  the  clerk  assistant, 
complaining  of  the  amount  of  the  costs,  charges,  and  e.K- 
penses  charged  by  any  parliamentary  agent ;  or  if  any  par- 
liamentary agent  shall  make  application  to  the  clerk  of  the 

(0  As  to  effect  of  certificate  under  9  Geo.  4,  c.  22,  s.  63, 
and  the  course  of  proceeding  in  regard  of  it,  iScc.  see  Fecior  v. 
Beacon,  5  Bing.  N.  C.  302;  Bailey  v.  Bond,  8  Dowl,  119^ 
Hanson  v.  Dundas,  3  Bing.  N.  C.  123,  180,  556. 


Parliamentary  Practice.         cccxxxvii 

parliaments,  or  clerk  assistant  as  aforesaid,  complaining  that 
he  is  aggrieved  by  the  nonpayment  of  the  costs,  charges, 
and  expenses  charged  by  him  in  respect  of  any  such  private 
bill  or  petition  as  aforesaid;  the  clerk  of  the  parliaments 
or  clerk  assistant  as  aforesaid,  upon  receiving  any  such  ap- 
plication, is  to  direct  that  such  costs,  charges,  and  expenses, 
so  far  as  the  same  shall  relate  to  the  House  of  Lords,  shall 
be  taxed  by  such  person  or  persons  as  he  shall  think  proper 
to  appoint.  The  person  or  persons  so  appointed  for  the 
taxing  such  costs,  charges,  and  expenses,  is  and  are  to  tax 
the  same,  and  to  report  to  the  clerk  of  the  parliaments,  or 
clerk  assistant  as  aforesaid,  the  amount  of  such  costs, 
charges  and  expenses  which  such  person  or  persons  shall 
think  fit  to  be  allowed  upon  such  taxation.  The  clerk  of 
the  parliaments,  or  clerk  assistant  as  aforesaid,  is  upon  ap- 
plication to  deliver  to  the  person  or  persons  concerned 
therein,  and  requiring  the  same,  a  certificate,  signed  by  him- 
self, expressing  the  amount  of  the  costs,  charges,  and  ex- 
penses allowed  in  and  by  such  report,  (m) 

The  person  or  persons  so  appointed  to  tax  such  costs, 
charges,  and  expenses,  is  and  are  authorized  respectively 
to  demand  and  receive  for  such  taxation  and  report  such 
fees  as  shall  be  from  time  to  time  fixed  by  any  resolution 
of  the  House  of  Lords,  and  for  that  purpose  to  charge  the 
amount  of  such  fees  at  the  foot  of  such  report,  either  against 
the  party  applying  for  such  taxation,  or  against  any  party 
complained  of,  or  in  such  proportions  against  each  of  such 
parties  as  such  person  or  persons  so  taxing  such  costs, 
charges,  and  expenses  may  think  fit. 

Such  certificate,  so  signed  by  the  clerk  of  the  parliaments, 
or  clerk  assistant  as  aforesaid,  is  conclusive  evidence  of  all 
demands  therein  certified ;  and  the  party  claiming  under 
the  same  is  (upon  receiving  the  amount  so  certified)  to  give 
a  receipt  at  the  foot  of  such  certificate,  and  such  receipt  is  a 
sufficient  discharge  for  such  costs,  charges,  and  expenses.  («) 

The  certificate  of  the  clerk  of  the  parliaments  or  clerk  as- 
sistant has  the  like  force  and  effect  as  the  Speaker's  certi- 
ficate, (o) 

Taxators  have  power  to  administer  oaths  to  the  parties 
appearing  before  them  in  support  of  or  in  opposition  to  sucii 
taxation,  touching  the  matters  relating  thereto ;  and  to  re- 
quire the  production  of  proper  vouclicrs  for  all  monies 
charged  as  having  been  paid  by  any  parliamentary  agent  in 

(r/i)  7&8  Geo.  4,  c.  64,  s.  I. 

(n)  lb. 

(o)  lb.  s.  2,  see  aote,  p.cccxxxvi. 


cccxxxviii  Appendix. 

the  prosecution  of  or  opposition  to  such  private  bill  as  afore- 
said, (p) 

The  clerk  of  the  parliaments,  or  clerk  assistant  as  afore- 
said, is  to  prepare  a  list  of  all  charges  which  shall  appear  to 
him  to  be  justly  payable  to  parliamentary  agents,  for  their 
skill,  time,  and  labour  bestowed  by  them  in  the  prosecution 
o{  or  opposition  to  such  private  bills  in  the  House  of  Lords 
as  aforesaid ;  and  such  list  of  charges,  if  approved  by  the 
House  of  Lords,  is  binding  and  conclusive  upon  all  parties 
concerned  therein.  (9) 


Section  IX. 

RESOLUTIONS,  &C.  OF  PRESENT  SESSION  RELATIVE 
TO  RAILWAY  BILLS.  (?■) 

I.  Resolutions,  &c.  of  House  of  Commons. 
IL  Resolutions,  &c.  of  House  of  Lords. 


I.  Resolutions,  &c.  of  House  of  Commons. 

First  Report  of  Select  Committee  on  Railways  of 
'5th  February,  1846. 

The  select  committee  appointed  to  consider  the  mode  in 
which  the  house  shall  deal  with  the  railway  bills  proposed 
to  be  submitted  to  the  house  during  the  present  session,  and 
who  are  empowered  to  report  from  time  to  time  to  the  house, 
have  considered  the  matters  referred  to  them,  and  agreed 
to  the  following  report: — 

That  for  the  purpose  of  facilitating  the  dispatch  of  rail- 
way business  during  the  present  session,  it  is  expedient  that 
a  portion  of  the  railway  bills  should  commence  in  the  House 
of  Lords. 

That  with  respect  to  any  railway  bills  which,  in  pursuance 
of  these  resolutions,  shall  commence  in  the  House  of  Lords 
during  this  session,  this  house  will  not  insist  on  their  privi- 
lege with  regard  to  the  clauses  fixing  and  regulating  rates 
and  tolls  in  such  bills. 

That  with  a  view  of  affording  early  and  increased  means 
of  employment  in  Ireland,  it  is  expedient  to  give  facilities 
for  the  early  consideration  of  Irish  railway  bills. 

(p)  7  &  8  Geo.  4,  c.  64,  s.  3. 

(9)  lb.  s.  4. 

(j)  See  further,  Addenda. 


Parliamentary  Practice.  cccxxxix 

That,  for  the  attainment  of  this  object,  it  is  expedient  that 
all  Irish  railway  bills  should,  in  the  present  session,  com- 
mence in  the  House  of  Lords. 

That  it  is  expedient  that  all  bills  which  compete  with  or 
ought  to  be  considered  in  connection  with  any  bills,  the 
promoters  of  which  shall  prove  themselves  entitled  to  the 
privileges  agreed  to  be  granted  in  certain  cases  by  the  reso- 
lutions of  this  house  of  the  7th  July  last,  shall  commence 
in  the  House  of  Lords. 

That  the  parties  promoting  railway  bills  which,  by  the 
above  resolutions,  are  to  commence  in  the  House  of  Lords, 
may  (notwithstanding  any  proceeding  respecting  such  bills 
in  the  House  of  Lords)  prove  before  the  committee  on 
petitions  of  the  House  of  Commons  that  they  have  complied 
with  the  standing  orders  of  this  house,  and  the  report  of 
such  committee  shall  be  ordered  to  lie  on  the  table.  If  the 
committee  should  report  that  the  standing  orders  have  not 
been  complied  with,  their  report  shall  be  referred  to  the 
committee  on  standing  orders,  whose  report  shall  be  ordered 
to  lie  on  the  table. 

That  when  a  railway  bill  shall  have  commenced  in  the 
House  of  Lords,  and  shall  be  sent  down  to  tlie  House  of 
Commons  from  the  House  of  Lords,  it  shall  be  read  the 
first  time  in  the  House  of  Commons,  and  shall  then  be  re- 
ferred to  the  committee  on  petitions,  to  uscertuin  whether 
the  railway  bill  so  sent  down  is  suhstantiuUi/  in  accordance 
with  the  standing  orders,  as  determined  by  the  House  of 
Commons,  (r) 

Second  Report  of  lOth  February,  I84G. 

The  select  committee  appointed  to  consider  the  mode  in 
which  the  house  shall  deal  with  the  railway  bills  proposed 
to  be  submitted  to  the  house  during  the  present  session,  and 
who  are  empowered  to  report  their  opinion  thereupon  fo  tlie 
house,  have  further  considered  the  matters  referred  to  them, 
and  agreed  to  the  following  report :  — 

L  That  a  committee  of  five  members  be  appointed,  to  be 
called  The  Classification  Committee  of  Railway  Bills,  and 
that  three  be  the  quorum  of  such  committee. 

(r)  The  resolutions  contained  in  the  above  report  were  sub- 
sequently adopted  by  the  house  on  the  6lh  February,  the  follow- 
ing  words  being  substituted  by  the  House  in  lieu  of  those  n. 
italics.  •'  who  shall  report  whether  the  standing  orders  huve  been 
complied  with,  or  whether  any  report  with  reference  to  siihstan- 
tially  the  same  bill  has  been  previously  laid  on  the  table  ol  tho 

House." 

pp2 


cccxl  Appendix. 

2.  That  copies  of  all  petitions  for  railway  bills  presented 
to  the  house  be  laid  before  the  said  committee . 

3.  That  the  committee  of  classification  shall  inquire  and 
report  what  railway  bills  compete  with,  or  ought  to  be  con- 
sidered in  connection  with,  any  railway  bills,  the  promoters 
of  which  shall  have  proved  themselves  entitled  to  the  privi- 
lege agreed  to  be  granted  in  certain  cases  by  the  resolutions 
of  this  house  of  the  7th  July  last. 

4.  That  the  committee  of  classification  shall  form  into 
groups  all  other  railway  bills  which,  in  their  opinion,  it 
would  be  expedient  to  submit  to  the  same  committee. 

5.  That,  as  soon  as  the  committee  of  classification  shall 
have  determined  what  railway  bills  are  to  be  grouped 
together,  they  shall  report  the  same  to  the  house,  and  all 
petitions  against  any  of  the  said  bills  shall  be  presented  to 
the  house  three  clear  days  before  the  meeting  of  the  com- 
mittee thereon. 

6.  That  no  railway  bill  be  read  a  first  time  later  than  the 
next  day  but  one  after  the  report  of  the  committee  on 
petitions  or  of  the  standing  order  committee  on  such  bill, 
as  the  case  may  be,  shall  have  been  laid  on  the  table,  except 
by  special  order  of  the  house. 

7.  That  there  be  not  more  than  seven  clear  days  between 
the  first  reading  of  any  railway  bill  and  the  second  reading 
thereof,  except  by  special  order  of  the  house. 

8.  That  the  breviate  of  every  railway  bill  shall  be  laid  on 
the  table  of  the  house,  and  be  printed  and  delivered  one 
clear  day  before  the  second  reading. 

9.  That  such  railway  bills  as  shall  have  been  read  a  first 
time  before  the  house  shall  agree  to  these  resolutions,  shall 
be  read  a  second  time  within  seven  clear  days  thereafter. 

10.  That  such  of  the  standing  orders  as  relate  to  the 
composition  of  the  committees  on  private  bills,  and  the 
orders  consequent  thereon,  be  suspended  so  far  as  regards 
railway  bills  pending  in  the  course  of  the  present  session. 

11.  That  committees  on  railway  bills  during  the  present 
session  of  parhament  shall  be  composed  of  a  chairman  and 
four  members,  to  be  appointed  by  the  committee  of  selec- 
tion. 

12.  That  each  member  of  a  committee  on  a  railway  bill 
or  bills,  shall,  before  he  be  entitled  to  attend  and  vote  on 
such  committee,  sign  a  declaration  that  his  constituents  have 
no  local  interest,  and  that  he  himself  has  no  personal  interest 
for  or  against  any  bill  referred  to  him ;  and  no  such  com- 
mittee shall  proceed  to  business  until  the  whole  of  the 
members  thereof  shall  have  signed  such  declaration. 


Parliamentary  Practice.  cccxli 

13.  That  the  promoters  of  a  railway  bill  shall  be  pre- 
pared to  go  into  the  committee  on  the  bill  on  such  day  as 
the  committee  of  selection  shall,  subject  to  the  order  that 
there  be  seven  clear  days  between  the  second  reading  of 
every  private  bill  and  the  sitting  of  the  committee  thereupon, 
think  proper  to  appoint,  provided  that  the  classification 
committee  shall  have  reported  on  such  bill. 

14.  That  the  committee  of  selection  shall  give  each 
member  not  less  than  fourteen  days'  notice  of  the  week  in 
which  it  will  be  necessary  for  him  to  be  in  attendance,  for 
the  purpose  of  serving,  if  required,  on  a  railway  bill  com- 
mittee. 

15.  That  the  committee  of  selection  shall  give  each 
member  a  sufficient  notice  of  his  appointment  as  a  member 
of  a  committee  on  a  railway  bill,  and  shall  transmit  to  him 
a  copy  of  the  twelfth  resolution,  and  a  blank  form  of  the 
declaration  therein  required,  with  a  request  that  he  will 
forthwith  return  it  to  them  properly  filled  up  and  signed. 

16.  That  if  the  committee  of  selection  shall  not  within 
due  time  receive  from  each  such  member  the  aforesaid 
declaration,  or  an  excuse  which  they  shall  deem  sufficient, 
they  shall  report  to  the  house  the  name  of  such  defaulting 
member. 

17.  That  the  committee  of  selection  shall  have  the  power 
of  substituting  at  any  time  before  the  first  meeting  of  a 
committee,  another  member  for  a  member  whom  they  shall 
deem  it  proper  to  excuse  from  serving  on  that  committee. 

18.  That  power  be  given  to  the  committee  of  selection  to 
send  for  persons,  papers  and  records  in  the  execution  of  the 
duties  imposed  on  them  by  the  foregoing  resolutions.  _ 

19.  That  no  member  of  a  committee  shall  absent  himself 
from  his  duties  on  such  committee,  unless  in  the  case  of 
sickness,  or  by  leave  of  the  house. 

20.  That  all  questions  before  committees  on  railway 
groups  or  bills  shall  be  decided  by  a  majority  of  voices,  in- 
cluding the  voice  of  the  chairman ;  and  that  whenever  the 
voices  shall  be  equal,  the  chairman  shall  liave  a  second  or 
casting  vote. 

21.  That,  if  the  chairman  shall  be  absent  from  the  com- 
mittee, the  member  next  in  rotation  on  the  list  (who  shall 
be  present)  shall  act  as  chairman. 

22  That  committees  shall  be  allowed  to  proceed  so  long 
as  three  members  shall  be  present,  hut  not  with  a  lens 
number,  unless  by  special  leave  of  the  house. 

23  That  if  on  any  day  within  one  hour  after  the  tune 
appohited  for  the  meeting  of  a  committee  three  n.e.nberH 
shall  not  be  present,  the  committee  shall  be  adjournal  to 


cccxlii  Appendix. 

the  same  hour  on  the  next  day  on  which  the  house  shall  sit, 
which  had  been  fixed  for  that  day. 

24.  That  in  the  case  of  a  member  not  being  present 
within  one  hour  after  the  time  appointed  for  the  meeting  of 
the  committee,  or  of  any  member  absenting  himself  from 
his  duties  on  such  committee,  such  member  shall  be  re- 
ported to  the  house  at  its  next  sitting. 

25.  That  each  committee  shall  be  appointed  to  meet  on 
each  day  of  its  sitting  not  later  than  twelve  o'clock,  unless 
by  the  regular  vote  of  the  committee. 

26.  That  committees  on  railway  bills  have  leave  to  sit  in 
the  present  session,  notwithstanding  any  adjournment  of  the 
house,  if  the  committee  shall  so  think  fit. 

27.  That  every  committee  on  a  railway  bill  shall  fix  the 
tolls,  and  shall  determine  the  maximum  rates  of  charge  for 
the  conveyance  of  passengers  (with  a  due  amount  of  lug- 
gage) and  of  goods  on  such  railway,  and  such  rates  of 
charge  shall  include  the  tolls,  and  the  costs  of  locomotive 
power,  and  every  other  expense  connected  with  the  convey- 
ance of  passengers  (with  a  due  amount  of  luggage)  and  of 
goods  upon  such  railway ;  but  if  the  committee  shall  not 
deem  it  expedient  to  determine  such  maximum  rates  of 
charge,  a  special  report,  explanatory  of  the  grounds  of  their 
omitting  so  to  do,  shall  be  made  to  the  house,  which  special 
report  shall  accompany  the  report  of  the  bill,  (s) 

Third  Report  of  17th  February,  1846. 

The  select  committee  appointed  to  consider  the  mode  in 
which  the  house  shall  deal  with  railway  bills  proposed  to 
be  submitted  to  the  house  during  the  present  session,  have 
further  considered  the  matters  referred  to  them,  and  agreed 
to  the  following  report : — 

The  number  of  petitions  for  railway  bills  which  have  been 
presented  this  session  have  been  stated  to  your  committee 
to  amount  to  562,  viz. : — 

For  Railways  in  England  and  Wales     .     .     395 

Scotland 120 

Ireland 47 

The  above  numbers  include  petitions  for  amalgamation 
bills,  and  in  some  cases  there  are  more  petitions  than  one 
for  the  same  scheme.     After  the  deduction  to  be  made  on 

(s)  The  resolutions  embodied  in  the  above  report  were  subse- 
quently adopted  by  the  house. 


Parliamentary  Practice.  cccxliii 

this  account,  the  number  of  distinct  railway  schemes  seems 

to  be, — 

For  England       351 

Scotland        83 

Ireland 47 

Total   ...    481 

As,  however,  many  of  these  schemes  may  fail  from  non- 
compliance with  the  standing  orders,  the  number  of  bills 
presented  to  parliament  may  possibly  fall  considerably  short 
of  this  amount,  and  your  committee  are  of  opinion  that  it 
will  not  be  necessary  or  expedient  in  the  present  session  of 
parliament  to  refer  mere  projects  to  committees,  as  was 
done,  owing  to  peculiar  circumstances,  in  the  last  session. 

From  a  statement  prepared  by  the  officers  of  the  Board 
of  Trade,  it  would  appear  that  if  the  same  principle  of 
grouping  which  was  adopted  last  year  should  be  followed 
in  the  present  session,  the  railway  schemes  in  England  and 
Wales  might  be  formed  into  51  groups,  and  those  for  Scot- 
land into  10;  about  61  select  committees  would  therefore 
be  required. 

As  the  house  has  already  ordered  that  all  Irish  railway 
bills  and  a  certain  limited  class  of  English  bills  (the  latter 
of  which  are  included  in  the  foregoing  statement)  should 
commence  in  the  House  of  Lords,  it  is  impossible  to  say 
how  many  of  these  may  be  sent  down  to  the  House  of 
Commons.  The  number  of  groups  into  wliich  railway 
schemes  for  the  united  kingdom  were  divided  last  year  was 
52,  but  owing  to  various  circumstances  only  15  committees 
appear  to  have  actually  sat. 
,  The  necessity  of  considering  so  great  a  number  of  railway 
bills,  in  addition  to  other  private  bills,  may  certainly  be  ex- 
pected to  produce  an  unusual  and  inconvenient  pressure 
upon  the  time  of  members  of  the  house ;  but  your  com- 
mittee trust,  that  as  committees  on  railway  bills  may  in  this 
session  begin  to  sit  at  an  earlier  period  than  in  tlie  last,  it 
will  not  be  found  impracticable  to  constitute  the  requisite 
number  of  committees  during  the  progress  of  the  session. 

Under  these  circumstances  your  committee  have  not 
deemed  it  advisable  to  recommend  to  the  house  to  make 
any  selection  from,  or  to  place  any  limitation  on  the  num- 
ber of  railway  schpmcs  to  be  submitted  to  the  consideration 
of  parliament  during  the  present  session. 

As  your  committee,  however,  believe  that  much  of  the 
time  of  the  select  committees  on  railway  bills  is  consumed, 
with  little  public  benefit,  in  minute  and  detailed  inquiries 


cccxliv  Appendix. 

into  the  amount  of  traffic  and  the  probable  profit  to  the 
projectors,  your  committee  are  of  opinion  that  the  standing 
orders  on  these  points  should  be  altered,  and  that  it  should 
no  longer  be  obligatory  on  committees  on  railway  bills  to 
make  special  reports  on  them. 

At  the  same  time,  your  committee  have  no  wish  to  fetter 
the  discretion  of  the  select  committees  to  make  such  inqui- 
ries as  they  ma}'  judge  proper  with  regard  to  population,  and 
to  the  extent  of  accommodation  that  would  be  afforded  to  the 
public,  where  they  consider  such  information  to  be  required. 

Your  committee  beg  further  to  suggest,  that  power  be 
given  to  select  committees  to  refer  the  consideration  of  any 
unopposed  railway  bill  included  in  the  group  referred  to 
them  to  the  chairman  of  ways  and  means  and  the  mem- 
bers ordered  to  prepare  and  bring  in  the  bill,  to  be  dealt 
with  as  other  unopposed  bills. 

19th  February,  1846. 

31.  Private  Bills. — Resolved,  That  no  notice  for  a  com- 
mittee on  a  petition  for  a  private  bill  be  received  at 
the  Private  Bill  Office  which  shall  fix  for  the  first 
meeting  of  such  committee  any  day  later  than  Friday, 
the  6th  day  of  March  next. 

Resolved,  That  no  notice  of  ])ostponement  of  any 
such  committee  be  received  at  the  Private  Bill  Office 
except  by  the  authority  of  the  committee  on  petitions 
for  private  bills. 

56.  Railwai/  Bills. — Paragraphs  7,   8  and  9  of  standing 
order,  No.  87,  read  as  follow — 
"  That  in  the  case  of  a  railway  bill  the  committee  report 
specially — 

7.  The  sufficiency  or  insufficiency  for  agricultural, 
commercial,  manufacturing  or  other  purposes  of  the 
present  means  of  conveyance  and  of  communication 
between  the  proposed  termini,  stating  the  present 
amount  of  traffic  by  land  or  water,  the  average 
charges  made  for  passengers  and  goods,  and  time 
occupied. 

8.  The  number  of  passengers  and  the  weight  and 
description  of  the  goods  expected  upon  the  proposed 
railwaj'. 

9.  The  amount  of  income  expected  to  arise  from 
the  conveyance  of  passengers  and  goods,  and  in 
what  proportion  ;  stating  also  generally  the  descrip- 
tion of  goods  from  which  the  largest  revenue  is 
anticipated." 

and  repealed. 


Parliamentary  Practice.  cccxlv 

25th  February,  1846. 
46.  Breviates  of  Private  Bills.— Ordered,  That  standing 
order,  No.  114,  requiring  the  breviate  of  all  private 
bills  to  be  laid  on  the  table  three  clear  days  before  the 
second  reading  of  such  bills, — and  standing  order,  No. 
119,  requiring  breviates  of  bills  amended  in  committee 
to  be  submitted  to  the  chairman  of  ways  and  means, 
and  laid  on  the  table  the  day  previous  to  the  con- 
sideration of  the  report, — be  suspended  with  respect  to 
all  bills  entitled  to  the  privileges  agreed  to  be  granted 
in  certain  cases  by  the  resolutions  of  the  house  on  the 
7th  day  of  July  last. 

26th  Februari/,  1846. 

48.  Railway  Bills. — Ordered,  That  all  select  committees 
on  railwaj'  groups  or  bills  be  empowered  to  refer  (if 
they  shall  so  thiiik  fit)  to  the  chairman  of  ways  and 
means,  together  with  the  members  ordered  to  prepare 
and  bring  in  each  such  bill,  any  unopposed  railway  bill 
submitted  for  their  consideration,  and  that  such  bills 
be  severally  dealt  with  by  the  said  chairman  and  those 
members  respectively  acting  with  him  as  other  unop- 
posed bills  are  to  be  dealt  with. 

3rd  March,  1846. 

25.  Private  B«7/s.— Ordered,  That  standing  order.  No.  110, 
requiring  that  there  be  three  clear  days  between  the 
first  and  second  reading  of  a  private  bill, — and  stand- 
ing order,  No.  134,  requiring  three  clear  days'  notice 
of  a  second  reading  to  be  given  in  the  Private  Bill 
©ffice,— and  standing  order,  No.  139,  requiring  one 
clear  day's  notice  in  the  Private  Bill  Office  of  the  day 
proposed  for  the  report  of  every  private  bill,  and  also 
for  the  consideration  of  the  report,  — and  standing 
order,  No.  123,  requiring  the  reports  on  railway  bills 
to  be  discussed  every  Tuesday  and  1'hursday,— and 
standing  order.  No.  142,  requiring  one  clear  day's  no- 
tice of  the  third  reading  of  a  bill,— and  standing  order, 
No.  124,  prohibiting  any  private  bill  from  passing 
through  two  stages  on  the  same  day,— be  suspended 
with  respect  to  all  bills  entitled  to  the  privileges  granted 
by  the  resolutions  of  the  house  of  the  7th  day  of  July 
last.  . 

That  such  bills  may  be  road  a  second  time  on  the 
day  following  the  first  reading  of  such  bills, 
r  r  5 


cccxlvi  Appendix. 

That  tlie  committees  on  such  bills  may  report,  and 
such  report  may  be  considered,  on  the  same  day  with 
that  on  which  the  committee  sits. 

That  such  bills  may  be  read  a  third  lime  on  the  fol- 
lowing day. 

5th  March,  1846. 

29.  Railway  Bills. — Paragraph  20  of  the  standing  order, 
No.  87,  read  as  follows, — 
"  That  in  the  case  of  a  railway  bill  the  committee  report 
specially — 

Whether  the  calculations  proved  in  evidence  be- 
fore the  committee  have  satisfactorily  established 
that  the  revenue  is  likely  to  be  sufficient  to  support 
the  annual  charges  of  the  maintenance  of  the  rail- 
way, and  still  allow  pi-ofit  to  the  projectors." 
and  repealed. 

19th  March,  1846. 

154.  Aqueducts,  ^-c. — Ordered,  That  in  case  of  bills  for 
making,  maintaining,  varying,  extending  or  enlarging  any 
aqueduct,  archway,  bridge,  weir,  canal,  cut,  dock,  ferry,  har- 
bour, navigation,  pier,  port,  railway,  reserA-oir,  tunnel,  turn- 
pike road  and  waterwork,  and  for  all  other  works  and  inclo- 
sures  on  tidal  lands  within  the  ordinary  spring  tides,  a  general 
plan  showing  the  situation  and  approaches  to  the  said  aque- 
duct, archway,  harbour,  &c.,  should  be  denoted  upon  a  sheet 
or  sheets  of  the  ordnance  survey,  when  published,  or  else 
upon  maps  of  an  equivalent  scale,  and  extending  ten  miles 
on  each  side ;  together  with  enlarged  plans  and  sections  of 
such  parts  of  the  works  as  are  on  the  tidal  lands  within  the 
ordinary  spring  tides  on  a  scale  of  not  less  than  twenty  feet 
to  an  inch,  with  the  dimensions  figured  thereon,  shall,  on 
or  before  the  30th  day  of  November,  be  deposited  in  the 
Board  of  Admiralty. 

Ordered  that  the  said  order  be  a  standing  order  of  this 
House. 

155.  Harbours,  ^c. — Ordered,  That  the  promoters  of  all 
bills  for  the  formation  or  improvement  of  harbours,  docks, 
piers,  railways,  bridges,  weirs,  &c.,  and  for  all  works  and 
inclosures  on  tidal  lands  within  the  ordinary  spring  tides, 
and  also  of  bills  for  bridges  over  or  tunnels  under  navigable 
rivers  already  inti-oduced  this  session,  shall  forthwith  send 
to  the  Board  of  Admiralty  a  copy  of  such  parts  of  the  plans, 
sections  and  books  of  reference  as  they  have  deposited  in 
the  office  of  any  clerk  of  the  peace  or  sheriff  clerk  on  or 


Parliamentary  Practice,  cccxlvii 

before  the  30th  day  of  November  immediately  preceding 
this  session  of  parliament  as  are  on  the  tidal  lands  within 
the  ordinary  spring  tides. 

II.  Resolutions,  &c.  of  Lords,  (a) 
First  Report. 
By  the  lords  committees  appointed  a  select  committee  to 
consider  of  the  mode  in  which  the  house  shall  deal  with 
the  railway  bills  proposed  to  be  submitted  to  the  house 
during  the  present  session,  and  to  whom  leave  was  given 
to  report  trom  time  to  time  to  the  house. 
Ordered  to  report. 

That  the  committee  have  met,  and  considered  the  matters 
to  them  referred,  and  have  come  to  the  following  resolu- 
tions ;  viz. 

Resolved,  That  it  is  the  opinion  of  this  committee  that 
such  portion  of  the  standing  order,  No.  224,  as  requires 
from  the  promoters  of  railway  bills  a  deposit  of  one- 
tenth  of  the  amount  subscribed,  should  be  suspended 
with  respect  to  all  such  railway  bills  as  shall  commence 
in  the  House  of  Lords  during  the  present  session  :  that 
no  such  railway  bill  should  be  read  a  first  time  in  this 
house  unless  a  deposit  of  one-twentieth  jjart  of  the 
amount  subscribed  shall  have  been  made  on  or  before 
the  6th  of  February,  and  no  such  railway  bill  should 
be  read  a  third  time  until  a  further  deposit  of  one  twen- 
tieth part  of  the  amount  subscribed  shall  in  like  manner 
be  made. 
Resolved  also,  That  it  is  the  opinion  of  this  committee 
that  this  house  should  not  receive  any  petition  for  a 
railway  bill  after  Monday  the  23d  of  this  instant  Fe- 
bruary, (t) 

Second  Report. 
By  the  lords  committees  appointed  a  select  committee  to 
consider  the  mode  in  which  the  house  shall  deal  with 
the  railway  bills  proposed  to  be  submitted  to  the  house 
during  the  present  session;  and  to  whom  leave  was 
given  to  report  from  time  to  time  to  the  house  :— 
Ordered  to  report, 

That  the  committee  have  again  met,  and  liavc  further 

(s)  See  further,  Addenda. 

(0  The  above  resolutions  were  subsequently  adopted  by  the 
house.  See  Minutes  of  ProceediDgs  of  the  6lh  February,  1846, 
pp.  46,  47. 


cccxlviii  /Appendix. 

considered  the  matters  to  them  referred,  and  have  come  to 
the  following  resohjtion ;  viz. 

Resolved,  That  it  is  the  opinion  of  this  committee  that 
the  standing  orders  of  this  house  with  regard  to  railway  bills 
should,  as  respects  railway  bills  commenced  in  this  house 
during  the  present  session,  he  altered  in  the  following  par- 
ticulars : 

That  standing  order.  No.  219,  be  altered  in  the  following 
particulars;  viz., 

That  on  the  bill  being  reported  to  the  house  from  the 
committee  on  the  bill,  or  at  any  time  previously, 
on  the  petition  of  the  parties  to  such  bill,  or  any 
of  them,  the  bill  shall  be  referred  to  the  standing 
order  committee,  which  shall  inquire  whether  the 
standing  orders,  the  compliance  with  which  is 
directed  to  be  proved  before  or  reported  bj''  the 
standing  order  committee  previously  to  the  third 
reading  of  the  bill,  have  been  complied  with ;  and 
the  committee  shall  report  on  the  matters  re- 
ferred to  them  in  the  same  manner  as  they  are 
directed  to  report  on  other  matters  referred  to  them 
by  the  standing  orders. 
That  five  clear  days'  notice  be  given  of  such  meeting 
of  the  committee,  and  that  it  be  proved  to  the 
satisfaction  of  the  committee  that  the  standing 
orders  had  been  complied  with  five  clear  days 
before  such  meeting  of  the  committee. 
That  the  standing  order  committee  shall  not  meet  to 
consider  the  compliance  with  such  of  the  standing 
ordei-s  as  are  directed  to  be  proved  before  them, 
until  after  the  expiration  of  seven  clear  days  from 
the  presentation  of  the  petition  if  the  bill  relate  to 
England,  or  until  after  the  expiration  of  ten  clear 
days  if  the  bill  relate  to  Scotland  or  Ireland. 
That  every  petition  complaining  of  a  non-compliance 
with  such  of  the  standing  orders  as  are  directed 
to  be  proved  before  the  standing  order  committee 
subsequently  to  the  first  reading  of  the  bill  shall 
be  presented  three  clear  daj's  before  the  meeting 
of  the  committee  to  consider  such  standing  orders. 
That  standing  order.  No.  220,  be  altered  in  the  following 
particulars;  viz.. 

That  the  service  of  every  application  required  to  be 
made  to  the  owners  or  reputed  owners,  lessees  or 
reputed  lessees,  and  occupiers,  by  the  fourth  para- 
graph of  the  said  standing  order,  may,  unless  a  peti- 


Parliamentary  Practice.  cccxlix 

tion  complaining  of  the  want  of  due  sen'ice  of  such 
application  shall  have  been  referred  to  the  standing 
order  committee,  be  proved  by  the  evidence  of  the 
agent  or  solicitor  for  the  bill,  stating  that  he  gave 
directions  for  the  service  of  such  application  in 
the  manner  and  within  the  time  required  by  the 
standing  orders,  and  that  he  beheves  that  such 
application  was  so  served ;  but  in  case  the  stand- 
ing order  committee  shall  not  be  satisfied  with  the 
evidence  of  the  agent  or  solicitor,  the  service  of 
such  application  shall  be  proved  in  the  usual 
manner. 
That  no  bill  commencing  in  this  house,  and  em- 
powering any  company  already  constituted  by  act 
of  parliament  to  execute  any  work  other  than  that 
for  which  it  was  originally  established,  shall  be 
read  a  third  time,  unless  the  committee  on  stand- 
ing orders  shall  have  specially  reported  that  the 
requisitions  contained  in  paragraph  No.  5  of  such 
order  have  been  complied  with. 

That  standing  order,  No.  224,  be  altered  in  the  following 
particulars;  viz,, 

That  as  respects  all  railway  bills  which  shall  com- 
mence in  this  house  during  the  present  session  of 
parliament,  it  shall  be  proved  to  the  satisfaction  of 
the  standing  order  committee  that  a  sum  equal  to 
one  twentieth  part  of  the  amount  subscribed  has 
been  deposited,  in  the  manner  recjuired  by  the 
said  standing  order,  on  or  before  the  si.xth  day  of 
February  instant;  and  it  shall  likewise  be  proved 
to  the  satisfaction  of  the  said  committee,  before 
the  third  reading  of  such  bill,  that  a  further  sum 
equal  to  one  twentieth  part  of  the  amount  sub- 
scribed has  been  deposited  in  like  manner.  (/) 

That  standing  order,  No.  225,  be  altered  in  the  following 
particulars;  viz.. 

That  it  shall  be  sufficient  if  the  proof  required  to  be 
given  by  the  last-mentioned  standing  ordrr  be 
adduced  before  the  standing  order  committee  at 
any  time  previous  to  the  third  reading  of  the  bill. 

That  all  the  standing  orders  applicable  to  railway  bills, 

(0  In  the  House  the  following  words  were  here  added.  "  And 
that  the  amendment  made  to  the  said  st.inding  order  on  llic  MU 
instant  be  further  amended  by  substituting  the  word  "  wcouU 
for  the  word  "  first." 


cccl  Appendix. 

except  such  of  them  or  such  part  of  them  as  are  altered  by 
or  inconsistent  with  the  aforesaid  standing  order,  shall  apply 
to  the  railway  bills  commenced  in  this  house  during  the 
present  session  of  parliament,  and  to  the  proceedings  in 
such  bills,  (u) 


Section  X. 

SUGGESTIONS  DRAWN  UP  BY  THE  CHAIRMEN  FOR 
THE  CONSIDERATION  OF  THE  SELECT  COM- 
MITTEES ON  RAILWAY  GROUPS,  SESSION  1846. 

1.  The  attention  of  every  committee  should  be  directed  to 

the  following  resolution  of  the  house  :  "  That  all  select 
committees  on  railway  groups  or  bills  be  empowered  to 
refer  (if  they  shall  so  think  fit)  to  the  chairman  of  ways 
and  means,  together  with  the  members  ordered  to  pre- 
pare and  bring  in  each  such  bill,  any  unopposed  rail- 
way bill  submitted  for  their  consideration,  and  that  such 
bills  be  severally  dealt  with  by  the  said  chairman,  and 
those  members  respectively  acting  with  him,  as  other 
unopposed  bills  are  to  be  dealt  with." 

2.  If  parties  agree  as  to  the  order  of  precedence  in  which 

other  bills  included  in  the  group  shall  be  taken,  the 
committee  will  adopt  their  agreement. 

3.  If  parties  do  not  agree,  the  committee  will  decide  the 

order  of  precedence  without  hearing  counsel. 

4.  In  this  case  such  bills  in  each  group  as  are  not  opposed 

by  competing  lines  will  be  first  taken  into  consideration 
in  the  order  in  which  they  have  been  read  a  second 
time. 

5.  With  respect  to  competing  lines,  the  committee  will  sub- 

divide if  necessary  the  bills  in  each  group,  so  as  to  dis- 
tribute into  separate  classes  the  bills  for  such  lines  as 
compete  inter-  se. 

6.  With  regard  to  such  separate  classes  and  the  bills  in  such 

classes,  the  committee  must  exercise  its  discretion,  ac- 

(h)  The  above  resolutions  were  subsequently  adopted  by  the 
house,  and  the  standing  orders  altered  accordingly.  See  Minutes 
of  Proceedings  of  Lords,  13  Feb.  1846. 

By  a  subsequent  report  the  committee  recommended  (among 
other  things)  the  repeal  of  the  2nd,  3rd  and  4th  sections  of  the 
standing  order  No.  233,  which  was  subsequently  agreed  to  by 
the  house.  See  Minutes  of  Lords'  Proceedings  of  Session  1846, 
p.  241.     As  to  new  standing  orders,  dec,  see  Addenda. 


I 


Parliamentary  Practice.  cccli 

cording  to  the  circumstances  of  the  case,  in  determining 
the  order  of  precedence. 

7.  In  the  cases  of  bills  for  lines  of  railway  competing  inter 

se,  the  following  course  adopted  last  session  is  proposed 
to  be  continued: 
Suppose  a  case  of  four  competing  bills : 
No.  1.   Counsel  opens  the  case,  and  then  produces  evi- 
dence. 
Landowners  and  other  opponents,  and  Nos.  2,  3  and  4 
then  cross-examine. 

No.  1.  Re-examines. 
Landowners  and  other  opponents,  and  then  Nos.  2,  3  and 
4  offer  consecutively  positive  evidence  in  opposition  to 
No.  1,  on  the  merits  of  his  case. 
No.  1.  Cross-examines. 

Landowners  and  other  opponents,  and  then  Nos.  2,  3  and  4 
re-examine. 

Same  process  with  2,  3  and  4  in  rotation,  and  4, 
3,  2  and  1  reply. 
Where  the  opposition  of  several  distinct  opposing  parties 
turns  on  the  same  points,  it  will  be  desirable  to  restrict 
as  far  as  possible  the  limits  within  which  the  riglit  of 
successive  examinations  and  cross-examinations  shall 
be  exercised. 

8.  In  all  cases  the  counsel,  in  opening  the  case,  is  to  be 

restricted  to  a  statement  of  facts.  The  counsel  for  op- 
ponents may  either  address  the  committee  previously 
to  offering  evidence,  or  afterwards,  but  not  both. 

9.  The  promoters  of  each  bill  shall  be  required,  two  clear 

days  before  the  day  appointed  for  the  first  sitting  of  the 
committee,  to  furnisli  to  the  clerk  of  the  connnittoe,  for 
the  use  of  each  member  thereof,  a  particular  printed 
statement  of  the  chief  points,  succinctly  stated,  on  which 
they  rest  their  case. 

10.  The  opponents  of  a  bill  shall  be  required  to  furnish  at 

the  same  time  a  like  statement  of  the  chief  points  on 
which  they  rest  their  opposition. 

11.  The  standing  orders  as  to  traffic  having  been  rescinded, 

no  detailed  evidence  as  to  traffic  shall  in  ordinary  cases 
be  received  either  in  support  of  or  in  opposition  to  a 
bill,  but  the  promoters  of  a  bill  sliall  be  required  to 
append  to  the  foregoing  statement  a  printed  list  of  tlic 
chiefcities  or  towns  intended  to  be  acconnnodated,  with 
their  respective  distances  from  llie  proposed  line,  toge- 
ther with  the  amount  of  the  |)opuiatiou  of  such  cities 
or  towns,  taken  from  the  returns  of  the  last  general 


ccclii  Appendix. 

census.  It  will  of  course  be  competent  to  the  com- 
mittee, if  they  shall  see  sufficient  cause,  to  require  fur- 
ther evidence  as  to  traffic. 

12.  With  a  view  to  place  some  reasonable  limit  on  the 

amount  of  engineering  evidence,  parties  shall  be  re- 
quired to  furnish  the  committee  with  the  names  of  the 
engineering  witnesses  whom  they  propose  to  call ;  and 
it  is  recommended  that  committees  should  place  some 
limit  on  the  number  of  engineering  witnesses  to  be  ex- 
amined with  reference  to  the  same  portion  of  any  pro- 
posed line. 

13.  In  the  case  of  amalgamation  bills,  the  promoters  of  any 
such  bill  shall  be  required  to  furnish  the  committee 
with  a  printed  statement  of  all  the  pecuniary  claims 
and  liabilities  to  which  any  company  included  in  the 
proposed  amalgamation  is  subject  by  any  previous  act 
of  parliament. 


(     cccliii     ) 


APPENDIX  IV. 


RAILWAY    FORMS. 

Parliamentary  Contract. 
Subscribers'  Agreement. 
Form  of  Application  to  Owners. 


PARLIAMENTARY   CONTRACT. 
This  Indenture,  made  the day  of ,  one  thou- 
sand eight  hundred  and ,  between  the  several  persons 

whose  names  and  seals  are  respectively  subscribed  and 
affixed  in  the  schedule  hereunder  written  or  hereunto  an- 
nexed, of  the  first  part,  and and (trustees  named 

and  appointed  for  the  purpose  of  enforcing  and  giving  effect 
to  the  covenants  herein  contained),  of  the  second  part; 
WITNESSETH,  that  eacli  of  them  the  said  several  persons 
parties  hereto  of  the  first  part,  together  with  tiie  several 
other  persons  who  have  severally  subscribed  or  may  Iicre- 
after  subscribe  their  names,  and  who  have  severally  afiixed 
or  may  hereafter  affix  their  seals  to  a  certain  other  inden- 
ture of  the  same  tenor,  purport  and  effect,  and  bearing  even 
date  herewith,  in  which  said  indenture  reference  is  made  to 
this  present  indenture,  doth  hereby  for  liimscif  and  herself, 
his  and  her  respective  heirs,  executors,  administrators  and 
assigns,  but  to  the  extent  only  of  the  sum  of  money  set 
opposite  to  his  or  her  name  in  the  said  schedule  liereto, 
and  not  further  or  otherwise,  covenant,  promise  and  agree 

with  and  to  the  said  and  ,  their  executors  and 

administrators,  in  manner  following,  (that  is  to  say,)  tiiat 
each  of  them  the  said  several  persons,  parties  hereto  of  the 
first  part,  hath  subscribed  and  doth  hereby  subscribe  tlie  sum 
set  opposite  to  his  or  her  name  in  the  said  schedule  licreto, 
for  the  purpose  of  making  and  establishing  a  railway,  to  bo 

called  by  the  name  of  the  railway,  or  by  such  otlier 

name  or  names  as  may  at  any  time  hereafter  be  ad()|)tcd  by 
the  provisional  directors  for  the  time  being,  engaged  in  pro- 
moting the  establishment  of  such  railway;  the  siiid  rail- 
way to  commence  at  or  near  ,  in  the  j)arisli  of  -, 

in  the  county  of ,  and  to  terminate  at  «r  near ,  in 

the  parish  of ,  in  the  county  of ,  with  such  branch 


cccliv  Appendix. 

or  branches  from  the  said  main  railway  to  any  towns,  places, 
railways  or  canals,  by  such  course  or  route  respectively  as 
may  hereafter  by  such,  directors  be  deemed  necessary  or 
desirable,  together  with  proper  approaches,  stations,  ware- 
houses, roads,  wharfs,  quays  and  other  works,  erections  and 
conveniences  thereunto  respectively  appertaining,  the  same 
respectively  to  be  made,  constructed,  established,  maintained 
and  conducted,  in  such  manner  as  shall  be  provided  for  by 
an  act  of  parliament  to  be  applied  for  in  the  next  session  of 
parliament;  And  the  said  parties  hereto  of  the  first  part 
agree  in  appointing,  and  so  far  as  in  them  respectively 
lies  do  hereby  appoint  to  be  the  provisional  directors  for 
prosecuting  the  said  intended  undertaking,  and  do  give  to 
such  provisional  directors  fresh  power  from  time  to  time 
to  add  to  or  to  reduce  their  number,  and  to  fill  up  vacancies 
which  may  be  occasioned  by  death,  resignation  or  other- 
wise, and  do  hereby  authorize  and  empower  the  provisional 
directors  for  the  time  being  to  apply  for  and  endeavour  to 
obtain  in  the  next  session  of  parliament  an  act  or  acts  for 
all  or  any  of  the  purposes  aforesaid,  and  to  insert  in  such 
act  or  acts,  in  addition  to  the  usual  proper  clauses,  all  such 
special  clauses  and  provisions  as  the  provisional  directors 
may  consider  necessary  or  desirable,  with  full  power  and 
authority  to  confine  the  application  to  a  portion  only  of 
the  said  undertaking,  omitting  the  remaining  part  thereof: 
And  the  said  parties  hereto  of  the  first  part  do  hereby  au- 
thorize and  empower  the  provisional  directors  for  the  time 
being  to  fix  upon  and  from  time  to  time  to  alter  and  vary 
as  well  the  site  or  spot  at  Avhich  the  said  intended  railway 
shall  conmience,  as  also  the  site  or  spot  at  which  it  shall 
terminate,  and  also  the  intermediate  course,  route  or  line 
thereof,  and  the  parishes,  townships  and  places  through 
which  the  same  shall  pass  :  And  also  from  time  to  time  to 
determine  what  branches,  if  any,  shall  be  made  therefrom, 
and  to  fix  upon  and  from  time  to  time  to  alter  and  vary  the 
course  or  line  of  such  branches,  or  any  of  them,  and  also 
to  abandon  and  relinquish  or  to  abstain  from  making  or  com- 
pleting any  such  branch  or  branches,  and  also  to  determine 
with  what  railway  or  railways  a  junction  shall  be  made,  and 
from  time  to  time  to  alter  and  vary  the  same ;  and  also  to 
fix  upon  and  from  time  to  time  to  alter  and  vary  the  place 
or  places  where  the  said  intended  railway  or  any  branch 
therefrom  may  be  or  may  have  been  intended  to  form  a 
junction  with  any  other  railway  or  railways,  and  to  arrange 
the  terms  upon  which  any  such  junction  may  be  made,  and 
also  the  terms  upon  which  the  construction  of  any  portion 
of  the  line  or  works  may  be  undertaken  jointly  with  any 


Parliamentary  Contract.  ccclv 

other  company,  and  also  to  fix  upon  and  from  time  to  time 
to  alter  and  vary  the  extent  and  situation  of  the  several  sta- 
tions and  other  works  connected  with  the  said  intended 
railway,  and  with  full  power  and  authority  for  the  provi- 
sional directors  to  permit  any  other  company  or  companies 
to  hold  shares  in  the  said  intended  undertaking,  and  to 
enter  into  any  arrangement  for  the  amalgamation  either 
wholly  or  partially  of  the  said  undertaking  with  any  other 
undertaking  or  undertakings,  and  to  enter  into  and  make 
any  agreement,  contract  or  arrangement  with  any  other 
company  or  companies,  person  or  persons  whomsoever,  for 
giving  an  interest  in  the  said  undertaking  and  a  control  or 
direction  in  the  management  thereof  to  such  company  or 
companies,  person  or  persons,  to  such  extent,  on  such  terms, 
and  subject  to  such  stipulations,  provisions  and  agreements 
as  such  provisional  directors  may  think  fit:  And  this  in- 
denture FURTHER  WITNESSETH,  that  eacli  and  every  of 
them  the  said  several  persons  parties  hereto  of  the  first 
part,  doth  hereby  for  himself  and  herself,  and  his  and  her 
heirs,  executors  and  administrators,  and  as  concerning  him- 
self and  herself  only,  and  his  and  her  own  acts,  deeds  and 

defaults  respectively,   covenant   with   the    said  and 

,  their  executors  and  administrators,  that  each  and 

every  of  them  the  said  several  persons  parties  hereto  of  tlie 
first  part  respectively,  his  or  her  heirs,  executors  or  admi- 
nistrators, shall  and  will  well  and  truly  pay  or  cause  to  be 
paid  the  amount  subscribed  by  each  of  them  the  said  seve- 
ral persons,  or  such  part  thereof  as  shall  not  have  been  paid 
by  them  respectively  at  tlie  date  of  their  respective  signa- 
tures to  these  presents,  in  such  sums  and  at  such  place  or 
places,  and  at  such  time  or  times  as  shall  be  recpiired  by 
the  said  directors,  until  an  act  or  acts  of  parliament  shall 
have  been  obtained  as  aforesaid,  and  after  such  act  or  acts 
of  parliament  shall  have  been  obtained,  as  the  directors  or 
others  authorized  by  the  said  act  or  acts  shall  lawfully  di- 
rect or  appoint.     In  witness,  &c. 

SCHEDULE  ABOVE  REFEKUED  TO. 


Chrisiianand 
Surname  of 
Subscriber. 

Descrip- 
tion. 

Place  of 
Abode. 

Amount 

ors»ii- 

Rcripiion. 

Amoiinl 
paiil  u|>. 

lliual 
SiKoalure. 

Seal 

Dair  of 
SlKnllutr. 

Niitii-  of 

UllM>». 

ccclvi  Appendix. 


SUBSCRIBERS'  AGREEMENT. 


This  Indenture,  made  the day  of  January,  a.d.  one 

thousand  eight  hundred  and  forty ,   Between  [members 

of  the  committee^  of  the  first  part,  the  several  other  persons 
who,  together  with  the  said  several  persons  parties  hereto 
of  the  first  part,  have  hereunto  respectively  subscribed  their 
names  and  affixed  their  seals  in  the  schedule  hereunder 

written  or  hereunto  annexed,  of  the  second  part,  and  

and (trustees  nominated  and  appointed  for  the  purpose 

of  giving  effect  to  the  covenants  hereinafter  contained),  of  the 
third  part,  Witnesseth  that  the  several  parties  hereto  of  the 
first  and  second  parts  do  hereby  acknowledge  themselves  to 
be  subscribers  to  an  undertaking  for  constructing,  establishing 
and  maintaining  a  certain  line  of  railway,  with  all  proper  ap- 
approaches,  depots,  stations,  quays,  wharfs,  landing  places, 
works  and  conveniences  connected  therewith :  (that  is  to  sa)',) 

a  line  of  railway,  to  commence  at  or  near ,  in  the  parish 

of ,  in  the  county  of ,  and  to  terminate  at  the  town 

and  parish  of ,  in  the  county  of :    And  further, 

that  the  said  several  persons,  parties  hereto  of  the  second 
part,  do  hereby  recognize  and  acknowledge  the  said  several 
persons,  parties  hereto  of  the  first  part,  and  the  survivors  or 
survivor  of  them,  and  such  other  persons  as  shall  be  from 
time  to  time  appointed  under  the  powers  and  provisions  for 
that  purpose  hereinafter  contained  as  provisional  directors 
for  managing  and  conducting  the  affairs  relating  to  the  same 
undertaking  until  an  act  or  acts  of  parliament  shall  be  ob- 
tained in  that  behalf:  And  this  Indenture  further  wit- 
nesseth, that  in  furtherance  of  the  said  undertaking,  and 
in  addition  to  the  parliamentary  contracts  respectively  bear- 
ing even  date  with  these  presents,  under  the  respective  hands 
and  seals  of  certain  of  the  said  several  persons  parties  hereto 
as  aforesaid,  and  which  have  been  respectively  executed, 
or  are  intended  to  be  forthwith  executed,  for  the  purpose  of 
obtaining  the  sanction  of  parliament  to  the  establishment 
of  the  aforesaid  line  of  railway  and  works  hereby  con- 
templated, each  of  them  the  said  several  persons,  parties 
hereto  of  the  first  and  second  parts,  so  far  as  relates  to 
the  acts  and  deeds  of  himself  and  herself  respectively,  and 
his  and  her  respective  heirs,  executors  and  administrators, 


Subscribers'  Agreement.  ccclvii 

but  not  further  or  otherwise,  doth  hereby  for  himself  and 
herself  respectively,  and  his  and  her  respective  heirs  exe- 
cutors and  administrators,  covenant  with  the  said  

their  executors  and  administrators,  that  each  of  them  the 
said  several  persons  parties  hereto  of  the  first  and  second 
parts  hath  subscribed  the  sum  set  opposite  to  their  respec- 
tive names  in  the  schedule  hereto  for  makinj^  and  establish- 
ing the  line  of  railway  and  works  hereinbefore  mentioned, 
or  such  part  thereof  as  the  said  directors  shall  from  time  to 
time  fix  upon  and  determine;  and  that  each  of  them  the 
said  several  persons  aforesaid,  and  their  several  and  respective 
executors  and  administrators,  shall  and  will  faithfully  con- 
form to  and  abide  by  the  several  stipulations,  rules  and 
regulations  hereinafter  mentioned  and  set  forth,  until  an  act 
or  acts  of  parliament  for  the  management  and  conduct  of  the 
said  undertaking,  shall  be  obtained ;  namely 

That  for  the  purposes  of  the  said  undertaking,  a  sum  not 

exceeding /.,  divided  into  shares  of /.  each,  shall  in 

the  first  instance  be  the  capital  of  the  company,  but  that  the 
provisional  directors  for  the  time  being  shall  have  power 
from  time  to  time,  if  they  shall  think  proper  so  to  do,  to  in- 
increase  such  capital  or  diminish  the  same,  or  the  capital  for 
the  time  being  of  the  said  undertaking,  and  to  vary  the 
amount  and  number  of  shares  into  which  the  same  is  or  «hal! 
be  divided,  and  such  additional  capital  shall  be  raised  in  such 
shares,  and  shall  be  apportioned  and  allotted  in  such  way  and 
manner  as  the  said  provisional  directors  shall  think  fit. 

That  the  said  provisional  directors  shall  not  be  bound  to 
recognize  the  transfer  of  any  share  or  shares  in  the  said  under- 
taking, except  by  the  authority  of  an  act  or  acts  of  parliament 
for  authorizing  the  said  undertaking,  but  may  at  tlieir  discre- 
tion, and  upon  such  terms  and  conditions  as  they  may  in 
each  case  think  fit,  elect  to  recognize  any  transfer  which 
but  for  this  provision  could  have  been  lawfully  made. 

That  each  of  the  said  several  parties  hereto  of  the  first 
and  second  parts,  being  subscribers  to  the  said  undertaking, 
shall  pay  a  deposit  of per  share  at  the  time  of  exe- 
cuting these  presents. 

That  each  of  the  said  parties  hereto  of  the  first  and  second 
parts  also  shall  and  will,  concurrently  with  the  execution 

of  these  presents,  or  within  days  after  notice  for  that 

purpose  in  writing,  to  be  left  at  or  sent  by  jwist  to  the  place 
of  residence  or  address  set  opposite  to  their  resjiective  names 
in  the  schedule  Iiereto,  duly  sign,  seal  and  deliver,  or  other- 
wise duly  execute,  any  one  or  more  parliamentary  undor- 
takino-s  or  subscription  contracts,  and  all  other  such  deeds 


ccclviii  Appendix. 

or  instruments  which  shall  for  the  time  being  be  required 
for  the  due  compliance  with  the  standing  orders  of  either 
house  of  parliament,  or  which  the  said  provisional  directors 
may  deem  necessary  or  proper  for  the  purposes  of  the  said 
undertaking,  and  such  deeds  and  instruments  shall  be  pre- 
pared in  such  form  as  the  said  directors  shall  deem  proper 
or  requisite. 

That  each  of  the  said  several  persons  parties  to  these 
presents  of  tlie  first  and  second  parts  also  shall  and  will, 
at  the  same  time  and  at  any  future  time,  as  the  said  di- 
rectors shall  call  for  or  require  the  same  to  be  paid,  pay  to 
such  person  as  the  said  directors  shall  appoint  to  receive  the 
same,  such  further  rateable  sum  per  share  (if  an\')  in  ad- 
dition to  the  present  deposit,  as  shall  be  necessary  in  order 
to  make  up  any  proportion  of  the  subscribed  capital  which 
shall  for  the  time  being  be  required  by  the  standing  orders 
of  the  houses  of  parliament  respectively,  or  either  of  them, 
to  be  deposited  and  paid  up,  and  shall  and  will  at  any  future 
time  also  duly  sign,  seal  and  deliver  or  otherwise  execute 
any  further  or  other  parliamentary  undertakings  or  sub- 
scription contracts,  or  other  instruments  rendered  necessary 
by  any  renewed  application  or  applications  to  parliament  in 
a  subsequent  session,  under  the  powers  for  that  purpose 
herein  contained,  and  pay  such  further  proportion  of  the 
respective  amounts  subscribed  by  them  as  may  be  called  for 
by  the  said  directors,  or  as  may  be  required  by  the  standing 
orders  of  either  of  the  houses  of  parliament  to  be  paid  upon 
any  such  renewed  application. 

That  in  case  any  of  the  said  several  persons  parties  hereto 
of  the  first  and  second  parts,  shall  neglect  or  refuse  to  comply 
with  the  provisions  hereinbefore  contained  for  the  execu- 
tion of  parliamentary  undertakings,  subscription  contracts 
or  other  deeds  and  instruments,  or  the  payment  of  the 
amounts  per  share  which  he,  she  or  they  shall  be  liable  to 
or  be  called  upon  to  pay  according  to  the  stipulations  afore- 
said, the  said  directors  shall  be  at  liberty,  if  they  in  their  ab- 
solute discretion  shall  think  fit,  but  not  otherwise,  to  declare 
the  shares  or  share  of  such  defaulting  party  to  be  forfeited, 
and  to  determine  the  interest  and  liability  of  such  parties  re- 
spectively in  and  to  the  said  company  and  undertaking,  and  to 
receive  and  accept  as  a  member  of  the  said  company  or  under- 
taking, in  the  place  and  stead  of  any  party  so  making  default 
as  aforesaid,  the  holder  for  the  time  being  (if  any)  of  the 
printed  scrip  or  certificate  issued  in  respect  of  any  shares  or 
share  in  the  said  undertaking,  subscribed  for  by  any  party 
so  making  default  as  aforesaid,  such  scripholder  duly  exe- 


Subscribers'  Agreement.  ccclix 

cuting  these  presents,  or  some  supplementary  or  further 
subscribers'  agreement  to  the  like  effect,  and  also  the  parlia- 
mentary undertakings  or  subscription  contracts,  and  paying 
the  rateable  proportion  of  the  amount  of  such  shares  or 
share  which  shall  be  payable  in  respect  thereof,  the  said 
company  accounting  to  such  party  for  the  deposit  paid  in 
respect  of  the  same  shares  or  share  by  the  party  so  makin"- 
default  as  aforesaid,  or  the  said  directors  shall  be  at  liberty, 
if  they  shall  think  fit,  to  declare  the  same  shares  or  share, 
and  the  deposit  paid  thereon,  absolutely  forfeited  to  the  said 
company,  and  to  reallot  the  shares  or  share  so  forfeited  to 
such  other  person  or  persons  applying  for  the  same  as  the 
said  directors  shall  choose. 

That shall  be  the  chairman,  and the  deputy 

chairman  of  the  said  company. 

That  the  majority  of  members  present  at  any  meeting  or 
board  of  the  said  provisional  directors  (such  meeting  con- 
sisting of  not  fewer  than members,)  shall  have  power, 

on  the  resignation  or  retirement  of  the  chairman  or  deputy 
chairman  for  the  time  being,  to  appoint  a  chairman  or  de- 
puty chairman  in  room  of  the  chairman  or  deputy  chairman 
resigning  or  retiring  as  aforesaid. 

Tliat  at  any  board  or  meeting  of  the  said  provisional  di- 
rectors, the  chairman  or  deputy  chairman  for  tlic  time 
being,  or  in  their  absence,  some  one  of  the  provisional  di- 
rectors, to  be  chosen  by  the  majority  of  members  present  at 
such  board  or  meeting,  shall  preside. 

That  the  majority  of  members  at  any  meeting  or  board 
of  the  said  provisional  directors  (such  meeting  consisting  of 

not  fewer  than  members),  shall  bind  all  tlie  members, 

whether  present  or  absent,  and  the  chairman,  or  any  other 
member  presiding  at  any  meeting  of  the  said  directors,  shall 
Lave  a  casting  vote  in  addition  to  his  vote. 

That  the  said  board  of  directors  shall  have  power,  from 
time  to  time,  to  add  to  their  number  from  among  the  sub- 
scribers to  the  undertaking,  holding  each shares  at 

least;  and  to  accept  the  resignation  of  any  director;  and  to 
supply  any  vacancies  that  may  occur  in  the  board  by  death, 
resignation,  or  incapacity ;  and  also,  in  their  discretion,  to 
remove  any  member  of  the  said  board  and  to  reduce  their 
number,  if  such  course  shall  be  desirable ;  and  also  to  ap- 
point from  its  members  any  sub-committee  or  sub-coinniit- 
tees  with  such  powers  and  authorities  and  subject  to  siirli 
regulations  as  the  said  directors  shall  think  i)roper,  pnni.lod 
that  such  powers  and  regulations  are  not  mcoiisistfiH  witli 
the  provisions  herein  contained. 


ccclx  appendix. 

That  the  said  directors  sliall  have  full  power  from  time  to 
time  to  make  and  establish,  and  also  to  revoke  or  varj'  all 
such  rules,  orders  and  regulations  as  they  may  think  neces- 
sary for  their  own  government,  and  for  the  management  of, 
or  otherwise  in  connection  with,  the  said  undertaking. 

That  the  said  directors,  and  every  board  or  meeting 
thereof  constituted  as  aforesaid,  shall  represent  and  be  com- 
petent to  act  on  behalf  of  and  to  bind  all  the  subscribers  to 
the  said  undertaking,  and  their  respective  executors,  admi- 
nistrators and  assigns,  and  shall  have  full  power  to  carry 
into  effect  the  said  undertaking,  in  such  manner  as  they 
may  deem  expedient,  with  any  such  variations,  alterations, 
modifications,  extensions  and  branches  as  they  may  think 
necessary  or  expedient,  and  generally  to  regulate  and  ma- 
nage the  affairs  of  the  said  company  and  all  matters  con- 
nected with  the  said  undertaking,  and  particularly  to  cause 
all  requisite  surveys  and  estimates  to  be  made,  or  to  adopt 
any  surveys  or  estimates  already  made,  and  also  '^so  far  as 
they  lawfully  can  or  may,)  to  make  such  arrangements 
with  any  other  railway,  tramroad,  canal  or  other  companies 
or  proprietors  and  others,  either  permanent  or  temporary, 
for  the  amalgamation  or  consolidation  of  the  company 
hereby  established  wholly  or  partially,  with  any  such  other 
company  or  undei'taking,  or  for  the  regulation  or  mutual 
accommodation  of  the  traffic  to  pass  along  the  railway 
hereby  proposed  to  be  made,  and  any  other  railway,  tram- 
road  or  canal,  or  for  the  purchase  or  taking  on  lease  from 
such  other  companies  or  parties,  of  their  railroad,  tramroad, 
canal  or  other  works  or  any  part  thereof,  or  any  interest  in 
or  right  over  the  same,  or  for  the  sale  or  granting  a  lease  of 
the  proposed  undertaking  to  any  such  other  companies  or 
parties,  or  giving  to  them  any  interest  in  or  rights  over  the 
same,  as  the  said  directors  may  deem  fit  and  expedient. 

That  the  said  directors  shall  also  have  power  (so  far  as 
they  lawfully  can  or  may)  to  enter  into  any  contracts  with 
landowners  and  others  for  the  taking  or  purchasing  or 
acquiring  any  interest  in  any  lands,  buildings,  or  other 
hereditaments  of  freehold,  leasehold,  copyhold  or  other 
tenure,  or  any  other  property  which  may  probably  be 
required  for  the  purposes  of  the  undertaking  or  which  may 
be  deemed  expedient  by  them  to  be  taken,  purchased  or 
acquired  for  any  purpose  connected  therewith,  in  considera- 
tion of  such  sum  of  money  or  such  )-early  rents,  and  gene- 
rally for  such  considerations  and  upon  such  terms  as  the 
said  directors  shall  think  fit,  but  so  that  every  such  contract 
shall  be  entered  into  conditionally  upon  an  act  or  acts  for 
establishing  the  said  company  being  obtained. 


Subscribers'  Agreement.  ccclxi 

That  the  said  directors  shall  have  full  power  from  time  to 
time  to  fix  upon  and  determine,  and  to  alter  and  vary  the 
sites  or  spots  at  which  the  said  railway  and  any  branches  or 
extensions  thereof  shall  commence  and  terminate,  and  the 
intermediate  courses,  routes  or  lines  thereof,  and  to  deter- 
mine what  extensions  or  branch  railways  shall  be  made 
therefrom  and  connected  therewith,  and  to  abandon,  vary 
or  postpone  any  such  branches  or  extensions  and  adopt  any 
other  branches  or  extensions,  and  shall  and  may  fix  upon 
and  from  time  to  time  alter  and  vary  tlie  extent  and  situa- 
tion of  the  warehouses,  stations,  depots,  bridges,  approaches 
buildings  and  other  works  connected  with  the  said  under- 
taking. 

That  the  said  directors  shall  have  full  power  and  they  are 
hereby  authorized  to  make  application  to  parliament  in  the 
next  or  any  subsequent  session  for  an  act  or  acts  for  autho- 
rizing the  construction  of  the  said  intended  railway  and  any 
branches  or  extensions  therefrom,  and  for  all  or  any  of  the 
purposes  aforesaid,  and  for  establishing  and  regulating  the 
said  undertaking  and  incorporating  the  subscribers  thereto; 
or  if  the  said  directors  shall  think  fit,  to  confine  the  applica- 
tion to  any  portion  of  the  said  undertaking,  and  in  such 
case  or  in  case  any  act  to  be  obtained  in  the  ensuing  session 
shall  authorize  the  constructiou  of  a  part  only  of  the  said 
intended  undertaking,  to  make  or  support  in  any  subsequent 
session  such  further  application  to  parliament  as  tl)e  said 
directors  may  deem  advisable,  for  the  construction  of  the 
remainder  of  the  said  undertaking  or  any  part  or  parts 
thereof,  with  additions  or  branches  and  extensions  thereto, 
and  also  to  introduce  or  to  consent  to  the  introduction  of  in 
any  act  or  acts  of  parliament  wliich  may  be  applied  for  as 
aforesaid,  in  addition  to  the  usual  clauses  and  provisions, 
such  other  clauses  and  provisions  as  to  the  said  directors 
may  seem  proper  or  may  be  required  by  parliament,  and 
■with  powers  to  demise  or  sell  the  said  undertaking  or  any 
part  thereof,  or  any  rights  or  interests  therein,  to  any  otlier 
company  or  parties;  and  also  from  time  to  time  to  take 
such  proceedings  in  parliament  or  elsewlierc,  as  they  may 
deem  expedient  for  tlic  j)urpose  of  supporting,  opposing,  or 
obtaining  an  alteration  in  the  provisions  of  any  l)ill  or  bills 
which  may  be  brought  forward  for  the  establishment  of  any- 
railway  or  other  works  or  undertaking  wliich  may,  in  thuir 
judgment,  affect  the  interests  of  the  said  undertaking  hereby 
contemplated. 

That  the  said  directors  shall  have  full  power  to  permit 
any  other  company,  or  the  promoters  of  any  other  under- 


ccclxii  Appendix. 

taking,  to  subscribe  for  and  bold  shares  in  the  capital  of  the 
company  hereby  established,  upon  such  terms  and  with  such 
powers  as  the  said  directors  shall  deem  expedient;  and  it 
shall  be  lawful  for  the  said  directors,  out  of  the  fimds  of  the 
company,  to  subscribe  to  or  hold  shares  in  the  capital  of  any 
other  undertaking;  and  the  said  directors  shall  have  full 
power  to  consent  to  the  insertion  in  any  act  or  acts  of  par- 
liament, whether  applied  for  on  behalf  of  the  company  here- 
by established  or  in  any  other  act  or  acts,  of  any  clauses, 
powers  and  provisions  for  giving  effect  to,  facihtating  or 
confirming  any  such  agreements  or  arrangements. 

That  the  said  directors  shall  have  full  power  to  engage, 
retain  and  appoint,  and  also  suspend  or  remove,  and  to 
reappoint  and  employ  bankers,  solicitors,  engineers,  sur- 
veyors, clerks,  agents,  servants  and  others,  and  to  pay  and 
allow  all  such  salaries  and  recompenses  as  the  said  directors 
shall  think  right. 

That  the  said  directors  shall  have  full  power  and  autho- 
nty  to  apply  any  part  of  the  moneys  which  shall  be  paid 
by  way  of  deposit  as  herein  mentioned,  in  making  such 
deposits  or  investments  of  paid-up  capital  as  are  or  shall 
be  required  by  the  standing  orders  of  either  house  of  par- 
liament, or  in  otherwise  compljing  therewith ;  and  also  in 
or  towards  the  payment  as  well  of  all  salaries,  recompenses 
and  engagements  as  aforesaid,  as  of  the  expenses  of  solicit- 
ing an  act  or  acts  of  parliament,  or  opposing  any  bill  or  bills, 
as  aforesaid,  and  all  other  costs,  charges  and  expenses  inci- 
dental to  the  said  imdertaking  or  which  such  du-ectors  or 
any  person  or  persons  on  their  behalf,  or  whose  acts  have 
been  or  ma}-  be  adopted  or  recognised  by  them,  have  been 
or  may  be  put  to  with  reference  to  the  pui-poses  of  the  im- 
dertaking in  any  respect,  and  whether  such  act  or  acts  of 
parliament  shall  or  shall  not  be  obtained. 

That  the  said  directors  shall  cause  true  and  correct  ac- 
counts to  be  kept  of  all  moneys  which  may  be  received  by 
them,  or  for  their  use  or  on  their  account,  on  behalf  of  the 
said  undertaking,  and  also  of  all  monies  expended  on  ac- 
count thereof 

That  the  said  directors  shall  be  empowered  to  invest  such 
deposits  as  may  be  received  by  them  from  the  subscribers 
on  account  of  the  respective  amounts  subscribed  by  them, 
or  any  part  thereof,  in  such  manner  and  at  such  rate  of 
interest,  and  generally  upon  such  terms  and  conditions  and 
at  such  times  as  they  in  their  discretion  shall  tliink  expedient. 

That  the  said  directors  shall  be  accoimtable  for  all  income 
and  profits  which  may  arise  from  such  investment,  but  shall 
not  be  answerable  for  any  loss  consequent  thereon. 


Subscribers'  Agreement.  ccclxiii 

That  in  any  act  or  acts  of  parliament  to  be  obtained  as 
aforesaid,  it  shall  be  provided  that  no  call  shall  be  made 
upon  the  subscribers  to  the  said  undertaking  or  any  of  them, 

■which  shall  exceed  the  sum  of pounds  per  share  at  any 

one  time  ;  and  also,  that  no  more  than calls  shall  be 

made  in  any  one  year,  and  that  there  shall  be  an  interval  of 

months  between  every  two  calls ;  and  also,  that  interest 

may  be  allowed,  if  the  directors  acting  in  the  execution  of 
the  said  act  shall  think  fit,  at  the  rate  of  four  pounds  per 
cent,  upon  the  amount  paid  up  by  each  subscriber  in  respect 
of  his  subsci-iption,  to  be  calculated  from  the  time  when 
the  intended  line  of  railway  shall  be  opened  to  the  public. 

That,  whether  any  act  or  acts  of  parliament  shall  or  shall 
not  be  applied  for  or  obtained  for  establishing  the  proposed 
undertaking,  the  said  directors  shall  be  indemnified  against 
and  in  respect  of  all  contracts  and  deeds  whatsoever  entered 
into,  made  and  done  by  them  in  pursuance  of  the  powers 
and  provisions  herein  contained,  and  all  losses,  costs,  charges 
and  expenses  which  they  may  incur,  sustain  or  be  put  unto 
in  the  execution  of  the  ti-usts,  powers  and  autliorities  com- 
mitted to  them  by  these  presents ;  such  costs,  charges,  losses 
and  expenses  to  be  respectively  apportioned,  assessed,  paid 
and  ma'de  good  among  and  upon  by  the  several  subscribers 
•  and  their  respective  heirs,  executors  and  administrators, 
rateably  according  to  the  amount  subscribed  by  them  re- 
spectivelv;  and  the  said  directors  are  hereby  also  autho- 
rized and  empowered  to  retain  to  and  reimburse  themselves 
respectively,  out  of  the  funds  of  the  said  undertaking,  all 
damages,  losses,  costs,  charges  or  expenses  wliich  tliey  re- 
spectively shall  or  may  incur,  sustain  or  be  put  unto  as  such 
directors  as  aforesaid. 

That  the  said  directors  rnay,  if  they  think  proper,  from 
time  to  time  call  any  general  meeting  or  meetings  of  tlie 
subscribers  to  the  said  undertaking  for  any  purposes  con- 
nected therewith. 

That  every  such  general  meetmg  shall  be  called  by  ad- 
vertisement, to  be  inserted  at  least  three  times  in  not  less 

than  three  of  the  principal  newspapers  published  in , 

twenty-one  days  previous  to  such  meeting,  and  such  adver- 
tisement shall  specify  the  object,  the  time  and  place  of 
meeting,  and  the  subjects  to  be  discussed  thereat. 

That  the  vote  of  a  majority  of  the  subscribers  present  at 
such  meeting,  provided  such  meeting  shdl  consist  of  not 

less  than  — ^  persons  holding  in  the  aggregate sliarcs 

in  the  said  company  or  undertaking,  shall  bind  the  miiiorily 
and  all  absent  shareholders. 

Q«2 


ccclxiv 


Appendix. 


In  witness  whereof  the  several  parties  hereto  of  the  third 
part  have  hereunto  set  their  hands  and  seals  the  day  and 
year  first  above  written,  and  the  parties  hereto  of  the  first 
and  second  parts  have  set  their  hands  and  seals  in  the 
schedule  hereto  on  the  several  dates  set  opposite  to  their 
respective  signatures. 


THE  SCHEDULE  REFERRED  TO. 


Christian  and 

Surname  of 

Subscribers  at 

length. 


Place 

of 

Abode. 


No.  of 
Shares, 


Amount 
of  Sub- 
scription. 


*^S" feature  of 


Date  of 

Signature. 


Witnessei 

Names, 


FORM  OF  APPLICATION  TO  OWNERS,  &c. 

{^Referred  to  in  Stajidirig  Order  17  of  Commons  and  220  of 
Lords. — (See  ante,  p.  cclv.)] 
No. 


Sir, 

We  beg  to  infonn  you,  that  application  is  intended 
to  be  made  to  parliament  in  the  ensuing  session  for  "  An 
Act"  iherc  iiisert  the  title  of  the  act],  and  that  the  property 
mentioned  in  the  annexed  schedule,  or  some  part  thereof, 
in  which  we  understand  you  are  interested  as  therein  stated, 
will  be  required  for  the  purposes  of  the  said  undertaking, 
according  to  the  line  thereof  as  at  present  laid  out,  or  may 
be  required  to  be  taken  under  the  usual  powers  of  deviation 
to  the  extent  of  yards  on  either  side  of  the  said  line 

which  will  be  applied  for  in  the  said  act,  and  will  be  passed 
through  in  the  manner  mentioned  in  such  scliedule. 

We  also  beg  to  inform  you,  that  a  plan  and  section  of  the 
said  undertaking,  with  a  book  of  reference  thereto,  has  been 
or  will  be  deposited  with  the  several  clerks  of  the  peace  or 
sheriff  clerks  of  the  counties  of  [specifi/  the  counties  in  ichich 
the  property  is  situate],  on  or  before  the  30tli  daj-  of  No- 
vember, and  that  copies  of  so  much  of  the  said  plan  and 
section  as  relates  to  the  parish  or  royal  burgh  (a)  in  which 

(a)  These  words  "  or  royal  burgh"  are  not  in  the  notice  given 
in  the  Standing  Order  of  the  Commons. 


Notice  to  Owners,  ^-c.  ccclxv 

your  property  is  situate,  with  a  book  of  reference  thereto, 
has  been  or  will  be  deposited  for  public  inspection  with  the 
clerk  of  the  said  parish,  schoolmaster  of  the  parish,  town 
clerk  of  the  royal  burgh,  or  the  clerk  of  the  union  within 
which  such  parish  is  included  [as  the  case  may  6e],  on  or 
before  the  31st  day  of  December  instant,  on  which  plans 
your  property  is  designated  by  the  numbers  set  forth  in  the 
annexed  schedule. 

As  we  are  required  to  report  to  parliament  whether  you 
assent  to  or  dissent  from  the  proposed  undertaking,  or  whe- 
ther you  are  neuter  in  respect  thereto,  you  will  oblige  us  by 
wiiting  your  answer  of  assent,  dissent,  or  neutrality,  in  the 
form  left  herewith,  and  returning  the  same  to  us  with  your 
signature  on  or  before  the  day  of 

next ;  and  if  there  should  be  any  error  or  misdescription  in 
the  annexed  schedule,  we  shall  feel  obliged  by  your  inform- 
ing us  thereof,  at  your  earliest  convenience,  that  we  may 
correct  the  same  without  delay. 


We  are.  Sir, 

Your  most  obedient  Servants, 


To 


SCHEDULE  referred  to  in  the  foregoing  Notice,  and  which  is  intended  to 
show  the  Property  therein  alluded  to,  and  the  Manner  in  which  the  Line 
of  the  deposited  Section  will  affect  the  same. 


Parish. 


Number 
on  Plans. 


Descrip- 
tion, 


Occu- 
pier. 


Description  of  the 
Section  of  the  Line 
deposited,  and  the 
greatest  Height  of 
Umbaukmeni  and 
Depth  of  Cutting. 


Parish, 


■ztaz 


:s2 


Number 
on  Plans, 


Descrip- 
tion. 


Lessee. 


Occu- 
pier. 


(     ccclxvi     ) 


APPENDIX  V. 


FUNCTIONS,  &c.  OF  BOARD  OF  TRADE  IN  REGARD 
OF  RAILWAY  BILLS  BEFORE  PARLIAMENT. 


The  nature  of  these  functions,  &c.,  may  be  best  collected 
from  the  consideration  of  the  following  portion  of  the  Mi- 
nute of  the  Board  of  Trade  of  the  10th  July,  1845,  relative 
to  the  constitution  of  the  Railway  Department  of  that  board, 
and  the  rules  for  conducting  railway  business. 

I.  My  Lords  are  of  opinion  that  the  distinct  board 
constituted  by  the  minute  of  6th  August,  1844,  should  be 
discontinued ;  and  that  all  railway  business  should  hereafter 
be  transacted  by  the  Lords  of  the  Committee  of  Pri\^ 
Council  for  Trade,  in  the  same  manner  as  the  ordinary 
business  of  this  committee. 

II.  All  such  railway  business,  however,  shall  be  trans- 
acted by  proceedings  distinct  from  the  ordinary  business  of 
this  committee.  The  despatch  of  railway  business  shall  be 
conducted  by  separate  written  minutes ;  and  the  directions 
and  decisions  of  the  Lords  of  the  Committee  shall  be  carried 
into  effect  by  the  several  officers  of  the  railway  department. 

III.  Reports  will  not  hereafter  be  prepared  for  parlia- 
ment, conveying  the  opinions  of  the  Lords  of  this  com- 
mittee on  the  merits  of  any  railway  project,  or  on  the 
comparative  merits  of  competing  schemes. 

IV.  But  in  order  that  my  Lords,  with  a  view  to  guarding 
the  public  interest,  may  have  at  all  times  an  accurate  know- 
ledge of  the  objects  of  the  various  railway  schemes,  and  of 
the  extent  of  the  powers  which  the  promoters  desire  to  ob- 
tain, my  Lords  direct  that  the  proper  steps  should  be  taken 
for  submitting  to  the  two  houses  of  parliament  the  necessity 
of  adopting  resolutions  requiring  the  promoters  of  the  va- 
rious schemes  to  deposit  as  heretofore,  at  the  Board  of 
Trade,  a  copy  of  the  plans,  sections,  &c.  It  would  also  be 
expedient  that  they  should  be  required  to  deposit,  concur- 
rently \vith  their  plans  and  sections,  a  sketch  of  the  proposed 


Functions,  ^c.  of  Board  of  Trade,     ccclxvii 

lines,  on  an  ordnance  map  of  England,  or  on  a  scale  equal 
tosuch  ordnance  map,  and  also  a  written  statement  con- 
taming  a  description  of  the  railway,  its  course,  its  advan- 
tages, its  proposed  fares  and  charges,  and  the  principal 
provisions  of  the  hill  which  they  intend  to  introduce. 

It  would  further  be  desirable  that  the  promoters  should 
deposit,  as  heretofore,  with  the  Board  of  Trade,  a  copy  of 
the  bill,  as  well  as  of  such  amendments  as  may  be  made 
during  its  progress. 

V.  If  upon  examination  of  any  railway  bill  it  should 
seem  expedient  to  the  Lords  of  this  committee  to  draw  the 
attention  of  parUament  to  its  provisions,  or  to  circumstances 
connected  with  it,  the  Lords,  after  the  commencement  of 
the  session,  and  from  time  to  time  as  they  may  see  fit,  will 
direct  a  report  to  be  prepared  accordingly.  Such  report 
shall  have  reference  to  the  following  subjects : — 

1.  All  questions  of  pubUc  safety. 

2.  All  departures  from  the  ordinary  usage  of  railway 
legislation,  where  such  usage  has  been  sufficiently  esta- 
blished. 

3.  All  provisions  of  magnitude  which  may  be  novel 
in  their  principle,  or  may  involve  extended  considera- 
tion of  public  policy.  For  example:  amalgamations 
and  agreements  between  separate  companies ;  exten- 
sions of  capital ;  powers  enabling  railway  companies  to 
pursue  purposes  different  in  kind  from  those  for  which 
they  were  incorjiorated  ;  modifications  of  the  general 
law ;  also  fares  and  charges ;  and  generally  all  points 
connected  with  the  bills  to  which  my  Lords  may  think 
it  right  on  public  grounds  to  draw  the  attention  of  par- 
liament. Such  report  shall  be  signed  by  the  president 
or  vice-president  of  this  committee ;  but  it  shall  in  no 
case  pronounce  an  opinion  on  the  actual  or  compa- 
rative merits  of  any  railway  scheme. 

VI.  My  Lords  direct  that  the  annual  report  of  the 
officers  of  the  railway  department  to  the  Lords  of  the  Com- 
mittee of  Privy  Council  for  Trade  shall  be  laid,  as  hereto- 
fore, on  the  table  of  both  houses  of  parUament 

The  rules  which  my  Lords  have  now  laid  down  for  the 
transaction  of  railway  business  will  be  subject  to  reconsi- 
deration hereafter,  if,  from  further  change  of  circumstances, 
or  otherwise,  they  should  be  found  inapplicable  or  incon- 
venient. 


(  ccclxviii  ) 

APPENDIX    VI. 

MANUSCRIPT  CASES,  &c. 


Rasinch  v.  Lambert,  N.  P.  Feb.  22,  1841,  coram, 
Lord  Abinger,  C.  B. 

This  was  an  action  brouglit  by  the  plaintiff,  a  civil  en- 
gineer, to  recover  for  professional  services  against  the  de- 
fendant as  one  of  the  provisional  committee  of  a  pro- 
jected railway  got  up  in  opposition  to  a  line  then  before 
parliament.  The  defendant's  name,  it  appeared,  had 
been  published  as  one  of  the  provisional  directors,  and  he 
had  once  been  seen  at  the  company's  committee-room.  It 
was  attempted  to  be  shown  on  the  defendant's  part  that 
the  opposition  Avas  not  bona  fide,  but  a  mere  experiment  by 
one  Peutlaud,  who  had  induced  the  defendant  and  others 
to  lend  their  names,  and  had  employed  the  plaintiff'  with- 
out any  authority  from  the  members  of  the  provisional 
committee. 

Lord  Abinger  told  the  jurj'  that  the  question  was,  whe- 
ther the  defendant,  by  allowing  his  name  to  go  forth  as 
one  of  the  committee,  had  not  induced  the  plaintiff  to 
give  his  services,  and  thereby  rendered  himself  liable.  If 
Pentland  Avas  employed  by  the  committee  to  oppose  the 
bill,  he  might  retain  the  plaintiff  on  their  credit,  if  his 
services  were  necessary.  A  verdict  passed  for  the  plaintiff. 

Fignoles  v.  Lefroy,  Liverpool,  August  30,  1841. 

This  was  an  action  by  the  plaintiff",  a  civil  engineer,  to 
recover  for  professional  services  rendered  to  a  projected 
railway  company.  The  defendant,  it  appeared,  had 
been  a  member  of  the  provisional  board,  but  had  subse- 
quently declined  to  take  any  shares  in  the  company. 
The  judge  left  it  to  tlie  jury  to  say  whether  the  work  was 
done  on  the  credit  of  the  defendant,  and  how  long  the 
plaintiff  continued  to  give  his  services  on  such  credit. 
Verdict  for  the  plaintiff. 


Unreported  Cases.  ccclx 

Stephenson  v.  Rudge—coxnm  Tindal,  C.  J. 
This  was  an  action  brought  by  the  plaintiflF,  who  had 
acted  as  clerk  of  a  provisional  company,  against  the  de- 
fendant, who  had  been  a  provisional  director  of  such 
company,  to  recover  arrears  of  salary.  The  plaintift',  it 
appeared,  had  been  employed  in  the  first  instance  not  by 
the  provisional  directors  but  by  a  third  party,  who  had 
got  up  the  company,  and,  :n  fact,  had  prevailed  with  the 
defendant  to  lend  his  name  to  the  undertaking.  The 
main  question  made  at  the  trial  was  whether  there  liad 
been  any  authority,  expressly  or  impliedly,  given  by  the 
defendant  to  such  third  party  to  employ  the  plaintiff. 
The  defendant  had  a  verdict,  which  the  Court  of  Common 
Pleas  subsequently  refused  to  disturb. 

Beetham   v.   Cook  and  others,   N.  P.,    coram    Lord 
Denman,  C.  J.,  December  5,  1840. 

This  was  an  action  for  work  and  labour,  &c.  brought 
against  five  of  the  directors  of  the  City  Railway  Com- 
pany, an  undertaking  which  eventually  failed,  by  a  per- 
son who  had  acted  as  their  solicitor.  The  grounds  of 
defence  were  various,  that  the  defendant  had  agreed,  m 
case  of  the  bill  failing,  that  he  was  only  to  be  paid  costs 
out  of  pocket ;  that  he  was  to  be  paid  out  of  the  deposits 
and  funds  of  the  company ;  that  the  plaintiff's  services 
were  useless  in  consequence  of  his  mismanagement ;  and, 
lastly,  that  the  plaintiff  was  a  partner.  In  summing  up, 
Lord  Denman,  C.  J.,  observecl,  that  though,  where  per- 
sons acted  as  directors,  a  little  evidence  would  be  suffi- 
cient to  show  that  they  were  liable  to  persons  employed 
who  acted  on  the  credit  of  their  names,  still,  as  in  the 
present  case,  the  plaintiff  had,  with  the  engineer  and 
surveyor,  called  into  existence  the  very  directors  whom 
he  was  suing,  this  made  it  more  probable  that  some  spe- 
cial agreement  existed  between  the  parties.  The  plain- 
tiff eventually  had  a  verdict;  but  a  new  trial  was 
granted. 

Simon  V.  Fector  and  others,  N.  P.  coram  Tindal,  C.  J., 
February,  1842. 

This  was  an  action  against  three  parties  as  jjrovisional 
directors  of  a  projected  railway  company  for  certain  ser- 
vices which  the  plaintiff  alleged  he  had  rendered  to  the 
undertaking.  The  plaintiff's  case  as  against  tlie  defend- 
ant Fector  went  no  further  than  to  show  that  lie  on  one 
Q<45 


ccclxx  Appendix. 

occasion  expressed  his  willingness  to  become  a  director 
in  case  the  scheme  could  be  carried  out,  and  that  his 
name  appeared  in  a  prospectus  printed  for  private 
circulation,  without  anything  to  connect  the  party  vnth 
that  prospectus.  The  judge  ruled  that  the  plaintiff 
was  not  entitled  to  recover,  one  of  the  defendants  not 
being  shown  to  have  been  in  any  way  connected  with  the 
matter. 

Elkington     v.    Fergusson    and    another,    Warwick 
Summer  Assizes,  a.d.  1841. 

This  was  an  action  for  services  rendered  by  the  plain- 
tiff as  agent  to  a  company  formed  for  caiTj-tng  out  a  rail- 
way, &c.  At  the  trial  a  prospectus  was  put  in,  in  which 
the  plaintiff's  name  appeared  as  agent ;  and  it  was  also 
proved  that  both  the  defendants  were  elected  and  acted 
fts  directors,  and  that  both  had  given  instructions  to  em- 
ploy the  plaintiff  in  distributing  prospectuses,  &c.,  and 
had  otherwise  recognized  the  plaintiff  as  the  agent  of  the 
company.  The  judge  ruled  that  the  items  charged  by 
the  plaintiff  previously  to  a  particular  day  could  not  be 
recovered,  as  there  was  no  evidence  that  the  defendants 
had  acted  as  directors  before  that  time. 

Reg.  V.  Great  Western  Hailivay  Company,  6  A.  &E. 
N.  S.  179  ;  S.  C.  1  Railw.  Cas.  28. 

There,  as  it  appeared,  the  Great  Western  Railway 
Company  were  owners  and  sole  occupies  of  a  line  of 
railway,  118  miles  in  length,  and  were  also  lessees  and 
sole  occupiers  of  two  branch  lines  44  and  18  miles  in 
length,  respectively  issuing  out  of  the  main  line.  Upon 
all  these  lines  they  carried  on  exclusively  a  large  trade  as 
carriers,  working  the  whole  as  one  concern.  The  receipts 
of  such  ti-ade,  from  the  branch  lines  alone,  if  set  against 
their  expenses  and  rent,  would  have  made  the  occupation 
of  them  in  fact  a  losing  concern,  but  this  occupation  in- 
creased the  traffic  upon  the  main  line. 

In  the  parish  of  T through,  which  the  main  line 

passed,  the  mode  adopted  by  the  parish  officers  in  rating 
the  railway  was  as  follows : — They  took  the  gross  re- 
ceipts per  mile  in  the  respondent  parish,  from  this  they 
deducted  a  mileage  proportion  of  the  expenses  and  out- 
goings on  all  the  lines  of  railway,  and  of  the  interest  and 
tenants'  profits  (including  profits  of  trade)  on  the  plant 
necessary  for  working  those  lines,  and  rated  the  com- 


Unreported  Cases.  ccclxxi 

pauy  on  the  residue.  The  expenses  deducted  ranged 
themselves  under  the  following  heads— viz.,  1,  main- 
tenance of  way ;  2,  locomotive  account ;  3,  carrying 
account;  4,  charges  for  salary  of  sujjerintendents  and 
clerks,^  advertising,  stationery,  &c.  ;  5,  repairs  and 
alterations  of  stations,  &c.  ;  6,  compensation  for  fire 
and  other  accidents,  &c  ;  7,  government  duty  on  passen- 
gers ;  8,  rates  and  taxes  of  all  kinds,  actually  paid 
(other  than  the  property  tax)  ;  9,  dhection  and  office  ex- 
penses, and  also  a  sum  for  the  annual  depreciation  of 
the  plant  necessary  for  working  the  main  line  and 
hranclies.  The  appellants  claimed  the  following  addi- 
tional deductions  :  1,  the  rateable  value  of  the  buildings 
appurtenant  to  the  railway,  and  necessary  for  its  pro- 
fitable enjoyment,  but  rated,  or  rateable,  separately  from 

it,  and  in  other  parishes  than  T ;  2,  the  depreciation 

and  wear  and  tear  of  the  rails  and  sleepers  on  the 
main  line  thitherto  defrayed  out  of  the  capital  -,  3,  5 
per  cent,  interest  on  the  sum  expended  in  forming  the 
company,  obtaining  the  act,  raising  the  capital  &c.  ;  4, 
the  income  tax  paid  by  the  company,  under  the  o  &c  () 
Vict.  c.  35  ;  5,  additional  parochial  assessments,  which 
might  become  payable  in  consequence  of  recent  decisions 
of  the  Court  of  Queen's  Bench  on  the  rating  of  railways ; 
6,  the  annual  total  loss  on  the  two  branches.  The  appel- 
lants further  contended,  that  instead  of  ascertaining  the 
tenants'  profits  by  a  per  centage  on  the  original  value  of 
the  plant,  or  moveable  stock,  they  would  be  more  coirectly 
represented  by  a  per  centage  on  the  gross  receipts. 

It  was  stated  on  the  part  of  the  respondents,  tliat  the 
plant  or  moveable  stock  of  the  company  was,  at  the  time 
of  making  the  rate,  depreciated  in  value ;  and  the  ses- 
sions found  that  in  fact  it  was  so  depreciated  ;  and  if  any 
of  the  deductions  demanded  by  the  company  were  allowed, 
then  the  respondents  claimed  to  take  such  reduced  value 
as  the  sum  upon  which  interest  and  tenants'  profits  should 
be  calculated. 

The  court  held,  that  among  the  above  deductions  that 
claimed  for  the  value  of  buildings  aj)purtenant  to  the 
main  line  and  branches  rated  or  rateable  elsewhere  than 
in  the  respondent  parish  ought  to  be  allowed,  but  that 
no  allowance  ought  to  be  made  in  respect  of  the  dcpn;- 
ciation  and  wear  and  tear  of  the  rails  and  sleepers,  it 
having  been  defrayed  out  of  the  capital  of  the  company, 
though  the  court  would,  it  seems,  have  held  otherwise, 
had  a  proportionate  sum  been  actually  deducted  from  the 


ccclxxii  Appendix. 

annual  revenue  to  meet  the  charge  in  question,  under  the 
certainty  that  it  would  accrue  in  a  given  time.  The  court 
v/ere  further  of  opinion  that  no  allowance  should  be 
made  for  interest  on  the  sum  expended  by  the  com- 
pany in  procuring  their  act,  &c.  ;  nor  for  the  additional 
parochial  assessments  alluded  to  ;  nor  for  the  actual 
loss  on  the  branch  lines.  With  respect  to  the  claim 
to  be  allowed  in  respect  of  the  sum  paid  for  income  tax, 
the  court  obsei'ved  that  they  were  not  informed  in  respect 
of  what  the  payment  had  been  made ;  the  respondents, 
treating  the  claim  as  made  in  respect  of  the  charge  on 
property  in  land,  payable  by  the  owner,  while  the  appel- 
lants claimed  it  in  respect  of  the  charge  on  the  occupation 
payable  by  the  tenant,  and  to  this  extent  at  least  the  court 
would  seem  to  have  thought  it  allowable. 

With  regard  to  the  two  remaining  questions  :  the  first, 
as  to  the  proper  mode  of  ascertaining  the  tenants'  profits, 
in  order  to  their  deduction  from  the  rateable  value,  the 
court  held  a  question  for  the  sessions  and  not  for  the  court ; 
upon  the  last,  touching  the  increase  of  assessment  provi- 
sionally claimed  by  the  respondents,  the  court  thought 
that  the  estimate  of  tenants'  profits,  &c.,  should  have  been 
taken  on  the  reduced,  and  not  on  the  original  value  of 
the  company's  plant ;  though  they  would  not  allow  the 
respondents  to  avail  themselves  of  this  decision,  so  as  to 
increase  their  existing  assessment. 


INDEX. 


A. 
ACQUIESCENCE.     See  Laches. 

effect  of,  in  depriving  owner  of  soil  of  right  to  injunction 

against  grantee  of  way  leave,  9. 
may  deprive  party  of  right  to  injunction  against  company, 
407,413. 

ACT  OF  PARLIAMENT  FOR  MAKING  RAILWAY, 

validity  of,  61. 

construction  of,  62  et  seq. 

regarded  as  a  contract,  62. 

not  to  be  treated  as  a  mere  private  assurance,  63. 

party  not  exempt  from  provisions  of,  though  he  has  not  had 
due  notice,  id. 

distinction  between  imperative  and  directory  clauses,  64, 

construction  of  clause  giving  powers  of  taking  land,  63,  64. 

of  taking  tolls,  64. 
of  compensation  clause,  64. 

several  acts  relative  to  same  company,  65,  66. 

provisions  of  prior  act  embodied  in  later  by  way  of  re- 
ference, 65. 

remedial  effect  of  later  act,  65,  66. 

ACTION.     See    Limitation  of  Action  ;  I'kocess  ;    Notice 
OF  Action. 
when  lies  for  owner  of  soil,  &c.  against  grantee  of  way- 
leave,  8. 
against  railway  company,  176  et  seq. 
against  company  to  enforce  payment  of  compensation,  219. 
what  declaration  to  show,  220. 
for  calls.     See  Calls. 

what  railway  company  may  have  against  strangers,  363. 
process,  what  good  service  of,  by  company,  id. 
form  of  declaration  and  evidence,  id. 
when  shareholder  may  have,  against  company,  370. 
when  third  party  may  have,  against  railway  company,  377. 
when  company  entitled  to  notice  of  action,  382,  383. 
what  acts  omitted  to  be  done  in  pursuance  of  act,  37b,  379. 


ccclxxiv  Index. 

XCTIO^— {continued.) 

what  acts  done  in  pursuance  of  act,  380. 

tender  of  amends,  383. 

lies  on  bond,  though  lien  given  on  tolls  of  company  without 

priority,  378,  n.  (g-) 
declaration  to  aver  performance,  &C.384,  385. 
breach,  what  held  sufficient,  385,  396. 
general  issue,  386,  387. 

negligence,  when  to  be  specially  pleaded,  386. 
plea  of  lien,  &c.  in  trover,  387. 
de  injuria,  when  improper,  id. 

ACTS, 

done  in  pursuance  of  statute,  what  are,  380. 
omitted  to  be  done,  378,  379. 

ADMINISTRATORS.     See  Eiecutors. 

ADVERTISEMENT.    See  Prospectus. 

AGENT, 

when  company  liable  for  acts  of,  72. 

appointment  of,  must  in  general  be  under  common  seal 

72,  175. 
when  need  not,  175. 
when  presumed,  id. 
act  of,  what  within  scope  of  authority,  175,  176. 

AGREEMENT.     See  Subscribers'  Agreement. 

for  withdrawing  opposition  in  parUament,  57 — 60. 

validity  of,  generally,  58. 

wlien  made  by  peer  or  member  of  parliament,  58,  59. 

objects  which  such  contracts  may  be  made  to  include,  and 
how  far  may  stipulate  for  deviation,  59,  60. 

company,  how  far  bound  by,  162  et  seq. 

agreement  in  general  necessary,  163  et  seq. 

conditional  assent  insuHicient,  163,  164. 

benefit  of  agreement  must  be  received,  165. 

must  be  for  collateral  advantage,  165,  166. 

change  in  organization  of  projectors,  effect  of,  on  prior  agree- 
ment, 166. 

quaere  whether  specifically  enforced,  where  company  lie  by 
and  do  nothing    166,  167. 

injunction  to  enforce  observance  of,  412,  413. 

ALIENATION, 

powers  of,  enjoyed  by  railway  companies,  125. 

ALLOTMENT  OF  SHARES.     See  Letter  of  Allotment. 
duty  of  provisional  committee  in  regard  of,  36. 

AMOTION, 

incidental  power  of,  238. 


Index.  ccclxxv 

ANIMAL, 

injury  to,  when  company  liable  for,  305,  n.  (r). 
viciousness,  &c.  of,  excuses  railway  company  for  not  deli- 
vering safe,  315,  n.  {y). 

ANNUITY, 

company  cannot  in  general  grant,  82. 

grant  of,  by  directors  under  authority  of  company,  243. 

APPLICATION  FOR  SHARES, 
form  of,  &c.  23,  42,  n. 

APPORTIONMENT  OF  RENT, 

in  case  of  land  taken  by  railway  company,  190. 

ASCENTS, 

to  bridges  across  railway,  108. 

ASSEMBLIES.     See  General  Meetings. 

ASSENT, 

conditional,  to  passing  of  bill,  effect  of,  163,  164. 

ATTORNEY, 

appointment  of,  to  make  returns  under  registration  act,  18. 
under  seal,  when  presumed,  351,  352. 


B. 
BANKRUPTCY, 

of  contractor  for  railway  works,  effect  of,  on  stipulations  for 

forfeiture,  144 — 146. 
materials,  &c.  when  not  in  reputed  ownership  of  contractor, 

146. 
of  shareholder,  eflFect  of,  on  shares,  270. 
assignees  take  shares,  subject  to  pledge,  &c.  id. 
reputed  ownership  of  shares,  id.  271. 
of  shareholder,  liability  for  calls,  how  affected  by,  289. 

BILLS  OF  EXCHANGE, 
company  cannot  make,  82. 
directors  cannot  issue,  &c.  243. 

BOARD  OF  TRADE.  See  Inspectors;  Legal  Proceed- 
ings; Railway  Companies  ;  Branch  Railways;  Bye 
Laws. 

power  of  supervision  of,  over  railway  companies,  330  et  seq. 

power  of,  to  direct  legal  proceedings  to  be  taken  against 
railway  companies,  337 — 339. 

BOND, 

by  compensation  claimant,  209,  210,  394,  395. 


ccclxxvi  Index. 

BOOKS  OF  COMPANY.     See  Calls. 
how  far  evidence,  251,  252. 
right  of  inspection  of,  252. 

BRANCH  RAILWAYS,  &c. 

power  to  make,  given  to  owners,  &c.  of  adjoining  land, 

78  et  seq. 
who  may  take  advantage  of,  79. 
what  railways  act  authorizes,  id. 
covenant  to  use,  paying  higher  rate  of  toll,  when  held  not 

to  run  with  land,  79,  80. 
ought  not  to  be  enforced  by  injunction,  80. 
power  of  making  over  roads,  how  to  be  construed,  80,  81. 
what  semble  a  determination  of  power,  81. 
power  of  making,  for  preservation  of  communication,  124. 
authority  of  Board  of  Trade  regarding,  335,  336. 

BRIDGE.     See  Road;   Water. 

when  not  indictable  as  a  nuisance,  87,  88. 

over  mill  race,  company  restrained  from  making,  of  less  than 

certain  dimensions,  90. 
power  of  company  to  make,  over  road,  87. 
for  the  purpose  of  buildmg,  company  may  place  materials 

on  land  of  another  company,  if  necessary,  89. 

BUILDER.     See  Contractor  ;  Works. 

BUILDINGS.    See  Hoise. 

BURTHENS, 

of  railway  company,  154  et  seq. 

BYE  LAWS, 

power  of  making,  247,  248. 

requisites  of,  248. 

to  be  approved  of  by  Board  of  Trade,  333. 


C. 

CALLS, 

to  be  made  on  all  the  shareholders  alike,  40. 

parties  taking  shares  iu  trust  for  company,  liable  to,  id. 

entitled  to  be  reimbursed  by  company,  id. 

future,  vendor  of  share  where  not  entitled  to  be  indemnified 

against,  263. 
power  of  making,  275,  276. 
duty  of  making,  276,  277. 
inandaraus  to  make,  277. 
to  enforce  payment  of,  id. 
conditions  precedent  to  making,  277,  278. 
who  liable  for,  279  et  seq. 


Index.  ccclxxvii 

CALLS — (continued.) 

subscribers,  who  meant  by,  280. 

legal  transferee,  281. 

when  party  estopped  from  disputing  his  liability  to,  281, 282. 

liability  to,  party  may  get  rid  of,  by  transfer  of  share,  283. 

falling  due  after  transfer,  transferor  not  liable  for,  284. 

semble,  transferee  not,  id.  285. 

informal  transfer,  &c.  does  not  discharge  from  liability  for, 

285  et  seq. 
in  case  of  transfer  of  scrip,  who  liable  for,  286—288,  n. 
liability  of  assignees  for,  289. 
of  bankrupt,  id. 
of  executors,  id.  290. 
liability  for,  how  far  discharged  by  forfeiture  of  shares,  290. 
irregular  forfeiture  does  not  discharge  from  liability  for,  291. 
to  be  made  by  proper  parties,  291,  292. 
semble,  invalidity  of  appointment  of  directors  no  ground  for 

resisting  action  for,  292. 
time  of  making,  293. 
amount  of,  id. 

formalities  to  be  observed  in  making,  293 — 295. 
resolution,  293,  294. 
prospective  resolution,  294. 
notice  of,  id.,  295. 
security  for  costs,  when  defendant  may  demand  in  action 

for,  350. 
declaration,  in  action  for,  350. 
charging  party  as  subscriber,  351. 
need  not  contain  count  for  interest,  id. 
rule  to  compute  in  action  for,  when  company  cannot  have, 

id. 
appointment  of  attorney  in  action  for,  when  presumed  to  be 

under  seal,  id.  352. 
pleas  in  action  for,  278,  279,  352  et  seq. 
application  to  set  aside  proceedings  in  action  for,  353,  D. 
general  issue,  what  proveable  under,  354. 
pleas  denying  giving  of  notice,  &c.,  id.  355. 
plea  denying  proprietorship  pleadable  with  general  issue, 

354. 
pleas  denying  notice,  &c.  to  conclude  to  country,  id. 
plea  of  transfer  and  registry  thereof  bad,  355. 
forfeiture,  plea  of,  what  to  show,  355,  356. 
action  for,  when  limited  to  particular  jurisdiction,  356. 
several  pleas  in  action  for,  id. 
of  moving  to  get  rid  of  pleas  allowed  by  judge's  order,  &c., 

id.  357. 
estoppel  from  defendant's  acts  need  not  be  replied  by  com- 
pany, 357. 
register  book  evidence  of  proprietorship,  id.  358. 
enough,  if  substantially  kept  in  compliance  with  act,  358. 
register  book,  from  what  time  evidence,  359,  360. 


ccclxxviii  Index. 

CALLS — (^continued.y 

evidence  of  defendant's  proprietorship,  where  register  book 

not  receivable,  360. 
transfer  book  per  se  evidence  of  date  of  entry  of  transfer,  id. 
want  of  memorial  of  transfer,  id.  36L 
minute  book  evidence  of  making,  361. 
signature,  when  presumed  to  be  that  of  chairman,  id. 
may  be  appended  at  subsequent  meeting,  id. 
injunction  lies  to  compel  (Urectors  to  make  equally  on  ali 

shareholders,  372. 
when  lies  to  restrain  actioo  for,  372 — 374. 

CANAL.     See  Water. 

CARRIER, 

using  railway  liable  for  accident  to  goods,  30S,  n. 

CARRIERS.    See  Carriers'  Act. 

railway  company  viewed  as,  303,  et  seq. 
duties  of,  304—306. 
liable  for  refusing  to  carry,  304. 
injury  to  animal,  when  liable  for,  303,  n. 
when  bound  or  not  to  forward  goods  same  day,  id,  306. 
for  what  risks  liable,  306. 
commencement  of  risks,  id.  307. 
termination  of  risks,  id,  308. 
whether  company  bound  to  deliver  goods,  id. 
when  liable,  though  place  of  delivery  beyond  liioits  of 

company's  business,  308. 
special  contracts,  proof  of,  id,  309. 

effect  of,  309—311. 
excuse  for  non-delivery,  &€.,  315,  316. 
in  case  of  animal,  315,  n. 
stoppage  in  transitu,  316,  317. 
charges  of  company,  when  unreasonable,  317,  318. 

when  unequal,  318,  et  seq. 
short  passenser  may  be  charged  at  higher  rate  than 

long,  320,^321. 
right  of  price  of  carriage,  321. 
lien  of  company,  id. 

special  property  of  company  in  goods.  Sec,  id. 
company  viewed  as  passenger  carriers,  322,  et  seq» 
duties  of,  322—324. 
liable  for  defect  in  engine,  322, 323. 
bound  to  utmost  care  and  diligence,  325. 
not  liable  for  mere  accident,  id. 
company  to  explain  how  accident  happened,  326. 
liability  of,  as  to  luggage  of  passengers,  326 — 328. 
right  to  fare,  329. 
light  of  lien,  id. 


Index,  ccclxxix 

CARRIERS— (co?iti?med.) 

declaration  when  charges  company  as,  and  not  as  railway 

proprietors,  379. 
in  declaring  against  company  as,  what  plaintiff  to  aver,  385. 
company  sued  as,  when  may  plead  general  issue,  386. 
mandamus  does  not  lie  to  company  to  compel  them  to  carry, 

389,  390. 

CARRIERS'  ACT, 

obligations  imposed  by,  312. 

on  whom  obligatory,  id.  313. 

what  articles  fall  within,  313. 

degree  of  liability  of  company  under,  id.  314. 

main  results  of,  314. 

CERTIFICATE   OF  BOARD   OF   TRADE.    See  Legal 

PnOCEEDINGS. 

for  taking  additional  land,  340,  341. 

CERTIFICATE, 

of  justices  to  coiTect  error,  &c.  in  book  of  reference,  76. 

when  justices  to  grant,  id. 

effect  of,  id. 

for  a  house,  what  held  to  luciude,  id. 

need  not  expressly  aver  dispute,  id. 

CERTIFICATE  OF  REGISTRATION,  17. 

CERTIFICATES  OF  SHARES, 

tender  of,  what  sufficient,  260,  261. 

CERTIORARI, 

lies  for  railway  company  to  remove  coroner's  inquest,  364. 
lies  to  remove  inquisition  under  railway  act,  399,  400. 

coroner's  inquest,  401. 
application  for,  cannot  be  renewed,  id. 
what  must  be  shown  in  order  to  obtain,  id. 
writ,  how  taken  away,  402. 

of  the  effect  of  taking  it  away,  402 — 404. 

CHARGES.    See  Carriers;   Tolls. 

CHEAP  TRAINS,  347. 

CLERGYMEN, 

serable  cannot  act  as  managers,&c.  of  rail  way  companies,  20. 
but  may  be  shareholders,  id. 

COLONIAL  RAILWAY  COMPANIES, 
when  to  be  registered,  12,  13. 

COMMITTEE.     See  Directors  ;  Provisional  Committee. 


ccclxxx  Index. 

COMMON  SEAL  OF  COMPANY.  See  Agent;  Contbactj 
Tort. 
appointment  of  agent  to  be  under,  72. 
how  far  necessary  to  validity  of  acts  of  company,  73. 
by  whom  may  be  applied,  id.  74. 

COMPANY.    See  Directors  ;  Subscribers  ;  Railway  Com- 
pany. 
for  making  railway,  provisional  formation  of,  11  et  seq. 
registration  of,  14  et  seq. 

powers  of,  under  provisional  instruments,  26,  27. 
powers  of,  on  provisional  registration,  27,  28. 
on  complete  registration,  28  et  seq. 

COMPENSATION.    See  Certiorari;  House  ;  Inquisition  j 

Mandamus  ;    Notice  ;    Precept  ;   Purchase  Money  ; 

Costs. 
construction  of  clause  relative  to,  64, 
time  for  making,  185  et  seq. 

what  not  a  temporary  taking  possession  of  land,  187. 
in  regard  of  what  interests,  187  et  seq. 
in  regard  of  easement,  188. 
in  regard  of  tenancies  at  will,  &c.,  id.  189. 
not  claimable  where  premises  not  given  up  before  time,  189. 
tenant  how  far  entitled  to  apportionment  of  rent,  190. 
in  regard  of  tenant's  fixtures,  good-will,  6lC.,  id.  191. 
for  what  damages  to  be  given,  191  et  seq. 
must  be  damages  caused  in  execution  of  powers  of  act,  191, 

192. 
how  far  to  be  made  for  damages  independent  of  taking  of 

land,  192  et  seq. 
what  damages  sufficient  to  support  claim  for,  194, 195. 
trifling  damages,  iScc.  not  sufficient,  196. 
for  future  damages,  197,  198. 

entire  claim,  when  to  be  brought  forward  at  once,  198. 
mandamus  to  assess,  389. 

COMPLETE  REGISTRATION, 
how  made,  18,  19. 
not  compulsory  on  companies,  19. 
expediency  of,  id. 
powers  of  company  on,  28  et  seq. 

COMPLETION, 

of  line  of  railway,  determines  powers  of  company,  130,  131. 
of  railway,  obligatory  on  company,  148 — 151. 

COMPULSORY    POWERS.      See    Powers   of    Railway 
Company. 


Index.  ccclxxxi 

CONDITIONS  PRECEDENT.     See  Calls. 

compliance  with,  to  be  shown,  to  give  right  of  action  against 
company,  170,  171,  384,  385. 

CONNECTING  RAILWAYS, 

disputes  between,  how  to  be  settled,  333. 

CONSIDERATION. 

failure  of,  determines  powers  of  company,  127. 

failure  from  state,  &c.  of  company,  where  incapable  of 

completing  line,  128. 
by  reason  of  deviation  by  company,  id.  129. 
failure  from  extrinsic  causes,  130. 

CONSTITUTION, 

of  company  generally,  68,  69. 
cannot  be  altered  by  bye  law,  248. 

CONSTRUCTION.     See  Act  of  Parliament. 
of  act  of  incorporation  generally,  62,  63. 
of  clause  giving  powers,  63. 
of  clause  giving  right  to  take  tolls,  64,  300  et  seq. 
of  compensatioa  clause,  64. 
of  several  aets  relative  to  same  company,  65,  66. 
of  restrictions  on  powers  of  company  to  deal  with  roads, 
&c.,  96  et  seq. 

with  aquatic  rights,  92  et  seq. 
of  contracts  of  railway  company,  169,  170. 
of  contract  for  transfer  of  shares,  258. 
'•'  void"  construed  to  mean  "  voidable"  at  election  of  com- 
mittee, 42,  n,  43,  n. 

CONTINUING  POWERS,  131. 

CONTRACT.     See  Agreement;  Directors;  Shares;  Sub- 
scribers; Suit;  Specific  Performance. 
for  sale  of  shares,  257  et  seq. 
what  company  competent  to  make,  81,  82. 
cannot  make  bills  or  notes,  &c.,  82. 
loan  notes  already  issued  may  be  renewed,  id.  n.  (d). 

to  be  paid  when  due,  &c.,  id. 

to  be  registered,  id. 
with  railway  company,  136. 

when  need  not  be  under  common  seal  of  company,  137. 
adoption  of,  by  company,  effect  of,  137. 
for  purchase  of  land,  138.     See  Vendor  and  Purchaser. 
for  sale  of  surplus  laud,  139. 
for  performance  of  works,  139  et  seq. 
validity  of,  generally,  139,  140. 
dependent  and  independent  covenants,  test  of,  140. 


ccclxxxii  Index. 

CONTRACT— (coHtinued.) 

stipulation  for  engineer  of  company  being  judge  of  works, 

142,  143. 
stipulations  for  forfeitures,  143  et  seq. 
how  far  liable  to  be  affected  by  contractor's  bankruptcy, 

144—146. 
effect  of  such  stipulations,  146 — 148. 
of  railway  company,  when  company  liable  on,  though  not 

under  commmon  seal  of  company,  161. 
company  liable  in  case  of  adoption,  &c.  of  contract,  162. 
of  projectors,  for  withdrawal  of  opposition  in  parliament, 

how  far  binding  on  company,  162  et  seq-     See  Agree- 
ment. 
requisites  of  contract  by  railway  company,  167  et  seq. 
mutual  consent  necessary,  167, 168. 
legality,  &c.  of  subject-matter,  168,  169. 
statute  of  frauds,  what  a  part  acceptance  within,  169. 
laws  of  construction,  id.  170. 
incidents  of,  170  et  seq. 
conditions  precedent,  170,  171. 
fraud,  oppression,  &c.  on  part  of  company,  equity  relieves 

against,  171. 
specific  performance  of,  id.  172. 
for  purchase  of  land,  effect  of  company  taking  possession, 

172. 
where  specific  performance  of,  semble,  not  decreed  against 

company,  173. 

CONTRACTOR  FOR  RAILWAY  WORKS.   See  Works. 
when  equity  will  relieve  against  decision  of  company's  en- 
gineer, 171. 

CONVERSION, 

railway  company  liable  for,  176. 

CONVEYANCE, 

effect  of  party  refusing,  <kc.  to  convey,  212,  213. 
of  legal  estate,  suit  in  equity  where  necessary  to  procure, 
213,  214. 

CORONER'S  INQUEST.     See  Certiorari. 
when  company  may  move  to  quash,  364. 
what  course  company  to  pursue  where  several  deodands 

levied  at  once  on  same  engine,  365. 
may  be  quashed  in  part,  id.  366. 
court  in  general  leaves  company  to  traverse,  &c.  36S. 
certiorari,  when  lies  to  remove,  401. 
when  company  must  pay  deodand,  422, 

CORPORATION, 

powers  of  company  viewed  as,  68, 69. 


Index.  ccclxxxiii 

COSTS, 

of  mandamus  to  sheriff  to  execute  precept,  211. 

taxation  of,  225,  n.  (c). 

of  making  out  title,  226. 

of  holding  of  inquisition,  id.  227. 

of  payment  of  money  out  of  court,  where  title  in  dispute, 

&c.  228,  229. 
of  interim  investment  in  funds,  &lc.,  229. 
of  payment  of  dividends,  &c.,  230. 
of  ultimate  investment,  230  et  seq. 
extraordinary  costs  where  company  obliged  to  go  into  equity 

to  procure  conveyance  of  legal  estate,  233. 

COVENANT. 

to  use  railway  does  not  generally  run  with  land,  2. 

otherwise  as  between  lessor  and  lessee,  2,  3. 

for  payment  of  tenants'  damages,  to  whom  money  pay- 
able, 8. 

for  payment  of  fixed  sum  of  money  as  consideration  for  with- 
drawing opposition  in  parliament,  effect  of,  60. 

for  use  of  branch  railway  paying  higher  rate  of  toll,  not  to 
be  enforced  by  injunction,  79,  80. 

does  not  run  with  the  land,  80. 

to  make  archway,  specific  performance  of,  when  decreed, 
123. 

test  of  dependent  and  independent,  140. 

implied  for  title  on  transfer  of  railway  shares,  267. 

CUTTINGS, 

power  to  take  land  for,  75. 

right  of  company  to  make,  on  deviated  line,  78. 


D. 

DAMAGE.     See  Compensation;  Futuue  Damage. 
company  to  do  as  little  as  possible,  90. 

DAMAGES, 

for  not  accepting  shares,  262,  263. 
for  not  transferring  shares,  263. 

DECLARATION.     See  Action  ;  Calls. 

DE  INJURIA, 

when  improper,  387. 

DEODAND.     See  Coroner's  Inquest. 

DEPOSIT, 

how  far  recoverable  or  not,  42,  n.,  53. 


ccclxxxiv  Index. 

DEVIATED  LINE, 

revived  powers  of  company  taken  to  apply  to,  134,  135. 

DEVIATION, 

stipulation  for,  on  withdrawing  opposition  in  parliament, 

not  necessarily  illegal,  59. 
what  held  not  to  amount  to,  77. 
power  of,  how  construed,  78. 
cuttings  and  embankments  on  deviated  line,  id. 
effect  of,  on  powers  of  company,  129. 

DIRECTORS.     See  Provisional  Committee. 

provisional,  when  cannot  reserve  shares,  36. 

liable  to  account  for  profits  made  thereby,  id. 

liable  for  suffering  deposits  to  remain  unpaid,  id. 

serable,  may  enforce  payment  of  deposit,  42,  n. 

semble,  liable   for  issuing  more  than  proper  number  of 
shares,  53. 

when  indictable,  id. 

one,  when  may  sue  other,  44. 

rights  of,  against  subscribers,  53. 

not  liable  for  deposit,  id. 

liable  on  contracts,  &c.  for  benefit  of  undertaking,  53,  54. 

circumstances  which  lead  to  presumption  that  credit  not 
given  to,  54. 

proof  of  party's  having  consented  to  be  a  director  neces- 
sary, 55. 

new  director  liable  on  prior  contract,  if  he  adopt  it,  id. 

liability  of,  how  determinable,  18,  56. 

liability  of,  on  contract  for  withdrawing  opposition  in  par- 
liament, 57 — 60. 

acts  of,  how  far  binding  on  company,  71,  72. 

invalidity  of  appointment  of,   shareholders  when  cannot 
take  objection  on  score  of,  72. 

vacancy  in  directory,  effect  of,  71,  72. 

mode  of  appointment  of,  240. 

qualification  of,  id. 

what  not  a  contract  to  disqualify  party  from  becoming,  id. 

number  of,  id.  241. 

tenure  of  office,  241. 

office,  how  lost,  241,  242. 

remuneration  of,  242. 

semble,  may  be  removed  for  misconduct,  238. 

powers  of,  243. 

powers  of,  contracting,  id. 

duties  of,  244. 

liabilities  of,  to  company,  245. 

to  third  parties,  246. 

liable  to  company  in  equity  for  fraud,  &c.  362. 

invalidity  of  appointment  of,  no  ground  for  relief  in  equity 
against  action  for  calls,  373. 

cannot  be  pleaded  in  action  for  calls,  352. 


Index.  ccclxxxv 

DISTANCE, 

prohibition  against  making  rail  or  tram  roads,  railway  sta- 

tions,  conveniences,  &:c.  for  deposit  of  goods  within  o'wen 

distance,  116— 118. 
house,  &c.  when  to  be  deemed  within  given  distance  of 

railway,  114,  115. 

DRAINING, 

making  railway  without  proper  drainage,  &c.,  and  thereby 
causing  an  inundation  of  adjoining  property,  ground  for 
compensation,  195. 

DUTIES,  &c.  OF  RAILWAY  COiWPANY. 
to  complete  railway,  148 — 151. 
to  maintain  railway,  151,  152. 
to  keep  it  free  from  impediments,  152, 
to  fence  railway,  &c.,  152, 153. 
to  act  up  to  purposes  of  their  institution,  153. 
to  make  and  enforce  payment  of  calls,  154. 

E. 
EASEMENT, 

right  to  make  railway  may  be  claimed  by  way  of,  6,  7. 
railway,  when  only  an  easement,  not  liable  to  rate,  7. 
compensation  in  respect  of,  188. 
injunction,  when  lies  to  secure,  367. 

EMBANKMENTS.     See  Cuttings. 

ENGINE, 

company  liable  for  accident  from  defect  in,  322,  323. 

ENTAIL, 

of  lands  taken  by  company,  when  barred,  218. 

EQUALITY, 

ofcharges,  318— 321. 

EQUITABLE  MORTGAGE.    See  Mortgage. 

EQUITY.     See  Injunction  ;    Suit. 

remedies  in,  against  provisional  directors,  36. 
against  holder  of  letter  of  allotment,  36,  42,  n. 

ESTOPPEL.     See  Calls. 

in  pais,  need  not  be  replied,  357. 

EVIDENCE. 

books  of  company,  how  far,  252. 

inspection  of,  id. 

of  usage,  &c.  to  explain  contract  for  shares,  258. 

parol,  of  verdict  of  compensation  jury,  208. 

in  action  for  calls,  361  et  seq.     See  Calls. 


ccclxxxvi  Index. 

EXECUTION, 

against  individual  shareholder,  236. 

EXECUTORS, 

right  of,  to  shares  of  deceased  shareholder,  274. 

probate,  id. 

liability  of,  for  calls,  289,  290. 

EXEMPTION, 

from  rateabilily,  159,  160. 

EX  PARTE  INJUNCTION,  407,414. 

EXPORTATION, 

meanioo;  of  the  word,  SOI. 


F. 

FAILURE, 

of  consideration.     See  Consideration. 

FALSE  PRETENCES, 

within  joint  stock  companies  act,  what  are,  21. 
what  evidence  of  sufficient,  id. 

FALSE  REPRESENTATION.     See  Pkospectus. 

FARES.     See  Carriers;  Tolls. 

FENCES, 

companies  liable  for  neglecting  to  erect,  &c.  179. 
to  be  made  by  company,  345,  346. 

FENCING, 

of  railway,  152,  153. 

FERRY, 

disturbance  of,  415,  n.  (9). 

issue  directed  by  Court  of  Equity  to  try  right  to,  416. 

FIFTY  FEET, 

when  house  to  be  deemed  within,  114,  115. 

FIRE, 

company  liable  for,  where  occasioned  by  sparks  being  neg- 
ligently allowed  to  escape  from  engine  on  railway,  182, 
183. 

FOREIGN  RAILWAY  COMPANIES, 

when  to  be  provisionally  registered,  12,  13. 

FORFEITURE, 

stipulations  for,  in  building  contract,  143  et  seq. 
of  shares,  274,  275. 


Index.  ccclxxxvii 

FORFElTURE-(co7iti«wed.) 

liability  for  calls,  how  far  got  rid  of  by,  290,  291. 
plea  of,  what  to  show,  355. 
injunction,  when  lies  to  restrain,  372. 

FRAUD, 

whether  railway  act  impeachable  on  ground  of,  61. 
how  far  affects  powers,  &c.  of  company,  67. 
covenant  securing  higher  rate  of  toll  for  use  of  branch  rail- 
way, when  held  to  amount  to,  79,  80. 
on  part  of  railway  company  relieved  against  in  equity,  171, 

FRAUDS,  STATUTE  OF, 

what  a  part  acceptance  within,  of  goods  by  railway  com- 
pany, 169. 
contract  for  sale  of  shares  not  within,  258. 
shares  not  goods.  Sec,  or  an  interest  in  land  within,  257. 

FUTURE  DAMAGE,  197,  198. 

G. 
GARDEN, 

held  to  be  included  in  term  "house"  in  certificate,  76= 

GATES. 

at  level  crossings,  334,  335. 

GENERAL  ISSUE, 

in  action  for  calls,  effect  of,  354. 

in  action  against  railway  company,  386,  387. 

GENERAL  MEETING, 

resolution  of,  %vhen  operates  as  act  of  company,  70,  71. 

what  requisite  to  render  resolution  valid,  id. 

illegality  of,  not  to  be  presumed,  71. 

requisites  of,  237. 

presumption  in  favour  of  legality  of,  id. 

not  invalid,  because  votes  of  shareholders  holding  shares  in 
trust  for  company  to  be  taken  into  account,  238. 

powers  of,  id. 

proper  tribunal  for  shareholders  to  ajjjieal  to  in  first  in- 
stance, id.  239. 

H. 

HIGHWAY.     See  Way;  Road. 
railway  a,  299. 

HOUSE, 

when  includes  yard  and  garden,  76. 
u  u  2 


ccclxxxviii  Index. 

HOUSE— (contmugrf.) 

provision  for  protection  of,  111  et  seq. 

to  what  it  applies,  112. 

what  a  house,  &c.  situate  within  fifty  feet  of  railway,  114, 

115. 
what  not,  115. 

inquisition  about,  when  to  be  taken  by  a  special  jury,  116. 
consequences  of  its  not  being  so  taken,  id. 
what  not  a  road,  station,  6ic.  within  prohibited  distance  of, 

116,  117. 
what  a  breach  of  a  prohibition  against  making  conveniences, 

&c.  for  deposit,  6cc.  of  goods  within  given  distance  of,  118. 

HUSBAND  AND  WIFE, 

wife's  share  pass  to  husband,  and  to  assignees  of  husband 
on  his  bankruptcy,  271,  272. 


I. 

ILLEGALITY, 

not  to  be  presumed,  58,  59. 

in  proceedings  of  public  meeting  of  company,  71. 

INDEMNITY, 

against  future  calls,  47,  263,  264. 

INDICTMENT, 

against  provisional  directors,  53. 

railway  company  liable  to,  for  nonfeasance,  178,  421. 

when  not  liable  to,  183,  184. 

for  obstructing  road,  181. 

for  setting  steam-engine  going  on  railway,  369. 

for  wrenching  off  locks  of  gates  along  line,  o70. 

railway  company  liable  to,  for  misfeasance,  421. 

not  for  felonies,  &c.  id.  421. 

form  of,  against  company,  422; 

INJUNCTION, 

right  of  owner  of  soil  to,  against  grantee  of  way  leave, 
8  et  seq. 

right  lost  by  acquiescence,  9. 

not  granted,  when  railway  completed,  9. 

when  granted,  to  restrain  owner  of  soil  from  taking  advan- 
tage of  his  legal  right,  10. 

covenant  for  user  of  branch  railway  charging  higher  rate  of 
toll,  when  not  to  be  enforced  by,  80. 

granted  to  restrain  company  from  making  arch  over  mill 
stream  of  less  than  given  dimensions,  90. 


Index.  ccclxxxix 

INJUNCTION-(eoH(i««ed.) 

obtained  by  company  to  restrain  trustees  of  road  from  re- 
moving stone  blocks,  dissolved,  106. 

to  restrain  company  from  making  road  otiierwise  than  to 
surveyor's  satisfaction,  110. 

to  restrain  company  from  acting  contrary  to  scope  of  their 
institution,  153,  371,  372. 

when  not  granted  lo  restrain  party  from  taking  up  rails  laid 
down  by  company,  177. 

when  granted  to  restrain  nuisance  by  company,  id.  178. 

to  restrain  company  from  making  excavations  near  house 
&c.  180,  181. 

when  railway  company  may  obtain,  366—368. 

in  case  of  trespass  under  colour  of  title,  368,  416. 

when  lies  for  individual  shareholder  against  company,  371 
et  seq. 

to  enforce  directors  to  make  calls  on  all  shareholders  alike 
372. 

to  restrain  forfeiture  of  shares,  id. 

to  restrain  action  for  calls,  372—374. 

for  stranger  against  company,  when  company  go  beyond 
their  powers,  406. 

in  case  of  urgency,  may  be  moved  for  ex  parte,  after  ap- 
pearance, id.  407. 

irreparable  raischief  need  not  be  shown  on  application  for, 
407. 

laches,  &c.  may  deprive  party  of,  id.  408. 

form  of,  408. 

undertaking,  when  accepted  in  lieu  of,  id.  409. 

effect  of  such  undertaking,  id. 

course  pursued  by  court  on  application  for,  where  doubtful 
legal  right  involved,  369,  409.  410. 

subsequent  dealing  with  by  court,  410,  411. 

where  obtained  by  fraud,  iic.  412. 

lies,  to  restrain  company  from  proceeding  in  violation  of 
arrangement,  on  faith  of  u  hich  the  company  were  buffered 
to  obtain  their  act,  412,  413. 

lies  in  plain  case  of  nuisance,  413,  414. 

may  be  moved  for  ex  parte,  414. 

how  dealt  with,  if  obtained  by  misrepresentation,  &c.  id. 

course  pursued  by  court,  when  nuisance  not  clearly  esta- 
blished, &C.414,  415. 

lies  to  protect  right,  in  regard  of  which  parly  may  recover 
penalties  de  die  in  diem,  415,  416. 

INJURY.     See  Compensation. 

INJURED, 

what  meant  by  term,  100,  101. 


cccxc  Index. 

INQUISITION.     See  Compensation;  Mandamus;  Costs. 
■when  to  be  taken  by  special  jury,  116. 
to  be  holden  before  proper  party,  202. 
finding  of  jury,  203. 
separate  assessment  of  purchase-money  and  compensation, 

&c.  203,  204. 
presumption  in  favour  of,  204. 
semble,  to  show  jurisdiction  on  face  of  it,  205,  206. 
when  held  to  do  so,  id. 
need  not  show  compliance  with  provision  of  act  operating  as 

a  defeasance  of  powers  of  company,  206. 
form  of,  id. 
effect  of,  and  on  what  interests  must  be  taken  to  operate, 

207,  208. 
parol  evidence  of  verdict  of  jury,  &c.  208. 
certiorari  to  remove.    See  CERTroRARi. 

INSOLVENCY, 

of  contract  or  for  railway  works.     See  Bankruptcy. 

INSPECTION, 

of  books  of  company  in  action  for  calls,  252,  362. 

INSPECTORS, 

of  railways,  330,  331. 

INTEREST, 

in  action  for  calls  how  recoverable,  351. 

INVESTMENT, 

of  purchase  money,  &c.     See  Costs;  Purchase-Money. 
what  court  will  sanction  under  general  power,  224. 

IRELAND, 

Irish  railway  company  suing  for  calls  in  England,  when  to 
give  security  for  costs,  350. 

ISSUE, 

what  directed  by  Court  of  Equity,  416. 


J. 

JUDGE'S  ORDER, 

for  charging  shares,  272,  273. 

purchase-money  in  hands  of  third  party  cannot  be  attached 
under,  273,  274. 

JUDGMENT, 

by  default  in  action  for  calls,  351. 


Index. 


cccxci 


JURISDICTION.     See  Precept  ;  Inquisition. 

certificate  held  to  show,  without  express  statement  of  dis- 
pute, 76. 

JUSTICES, 

jurisdiction  of,  in  case  of  parties  employed  on  railways, 

343,344. 
in  case  of  trespasses,  &c.  on  railways,  344,  345. 


LACHES.     See  Acquiescence. 

when  no  bar  to  remedy  in  equiiy  for  compensation-money, 
222. 

LANDLORD  AND  TENANT.    See  Tenancy,  &c. 

covenant  to  use  railway  as  between  landlord  and  tenant 
runs  with  land,  2,  3. 

tenant's  damages,  money  reserved  by  way  of,  whether  pay- 
able to  landlord  or  tenant,  7,  8. 

when  landlord  may  file  bill  in  equity  against  railway  com- 
pany without  joining  tenant,  418. 

LEASE, 

how  far  company  competent  to  grant,  126,  127. 
of  railway  shares,  lessee  estopped   from  denying    lessor's 
title,  267. 

LEGAL  PROCEEDINGS, 

Board  of  Trade,  when  to  certify  for  taking,  against  com- 
pany, 337-339. 
notice  to  be  first  given,  339. 
certificate  necessary,  id. 

LEGALITY. 

of  railway  company,  67. 
of  railway  act,  61. 

LEGISLATURE.     See  Parliament. 

LETTER    OF    ALLOTMENT.     See  Scnii-   CKntiFicATEs; 

Allotment  of  Shares. 

holder  of,  liable  to  pay  deposits,  42,  n. 

remedies  against  holder,  in  case  of  default  in  payment  of 
deposit,  43,  n. 

forfeiture  of,  36,  42,  n. 

"  void,"  construed  to  mean  voidable  at  election  of  com- 
mittee, 42,  n.,  43,  n. 

LEVEL  CROSSINGS,  334,  335. 


cccxcii  Index. 

LIEN, 

stipulation  for,  in  contract  for  performance  of  railway  works, 

145. 
effect  of,  145—148. 
plea  of,  by  company,  387. 

LIGHTS, 

of  house  not  included  in  schedule,  action  lies  against  com- 
pany for  obstructing,  £cc.,  179,  180. 

LIMITATION, 

of  action,  380—382. 

LOAN  NOTES.     See  Contract. 

railway  companies  not  to  borrow  money  on,  82,  n.  (d). 

LUGGAGE.     See  Carriers. 

M. 

MAILS, 

transmission  of,  by  railway,  346. 

MAINTENANCE, 

of  railway,  151,  152. 

MAKING  OF  RAILWAY.     See  Railway  ;  Duties,  &c.  of 
Railway  Company. 

MANDAMUS, 

to  company  to  make  road  to  satisfaction  of  surveyors,  110. 

to  complete  railway,  150,  151. 

to  issue  precept  to  assess  compensation,  when  lies  to  com- 
pany, 209. 

when  refused,  id. 

giving  of  bond  how  far  a  necessary  preliminary  to  applica- 
tion for,  209,  210. 

to  company  to  issue  fresh  precept,  when  does  not  lie,  211. 

to  sheriff,  6cc.  to  execute  precept,  id. 

semble,  does  not  lie  to  compel  payment  of  purchase-money 
to  owner  of  land,  &c.  219. 

lies  to  enforce  payment  of  purchase-money,  Sec.  into  bank, 
221. 

application  for,  what  to  show,  id. 

legality  of  prior  proceedings  presumed  on  such  application, 
id. 

lapse  of  time,  when  no  reason  for  refusing,  id. 

to  make  calls,  277. 

to  enforce  payment  of  calls,  id. 

when  lies  for  shareholder  against  company,  371. 

in  what  cases  lies  against  company  for  third  party,  388, 
389,  392. 


Index.  cccxciii 

MANDAMUS— (continued.) 
when  not,  389—391. 

what  to  be  shown  on  moving  for,  393 — 395. 
un-it  must  show  enough  to  give  court  jurisdiction,  396. 
fault  must  be  distinctly  charged,  id. 
mandatory  part  of,  what  to  show,  396,  397. 
return,  397—399. 
part  of,  may  be  quashed,  and  rest  traversed,  399. 

MARRIAGE.     See  Husband  and  Wife. 

MEMBER  OF  PARLIAMENT.    See  Parliament. 

MESSUAGE.    See  House. 

MILITARY,  &c. 

to  be  conveyed  by  railway  companies,  346. 

MINE.     See  Minerals. 

MINERALS,' 

provisions  relating  to,  118 — 120. 

MINUTE  BOOK.    See  Calls. 

MISREPRESENTATION.     See  Fraud;  Prospectus. 

MONEY  HAD  AND  RECEIVED, 

action  for,  when  lies  against  company,  377,  o.  (^). 

MORTGAGE, 

how  far  company  competent  to,  126. 

by  company,  effect  of,  244.  ^ 

land  of  company  when  not  included  in,  id. 

equitable,  of  shares,  how  created,  267. 

necessity  of  notice,  268. 

mortgagor,  &c.,  a  trustee  for  mortgagee,  dec.  id. 

mortgagee,  &c.  paying  calls  entitled  to  be  reimbursed,  id. 

269. 
lien  of  mortgagee,  &c.  when  lost  against  subsequent  pur- 
chaser, 268,  269. 
shares  when  in  reputed  ownership  of  mortgagor,  270,  271. 


N. 

NAME, 

of  company  to  be  used  in  ail  proceedings  by  or  against  tlie 
company,  72,  73. 

NEGLIGENCE.    See  Tort;  Injunction;  Action. 

NEW  TRIAL, 

when  parly  cannot  move  for,  211. 
K  n  5 


cccxciv  Index. 

NONFEASANCE.     See  Tort  ;  [ndictment. 

NOTICE, 

of  company's  intention  of  taking  property,  198,  199. 
what  to  show,  199. 
effect  of,  id. 
counter  notice,  id.  200. 

to  company  by  claimant  of  compensation,  208,  209. 
of  equitable  mortgage,  &c.  to  company,  268,  269. 
what  equivalent  to,  271. 
of  opening  railway,  331. 

to  quit  by  company  to  determine  tenancy  at  will.  Sec,  188, 
189. 

NOTICE  OF  ACTIOi^J. 

when  company  entitled  to  or  not,  382,  383. 
to  inc'ude  plaintiff's  entire  grievance,  383. 

NOTICE  OF  CALLS.     See  Calls. 

NUISANCE   BY   RAILWAY  COMPANY.     See  Indict- 
ment ;  Injunction. 
branch  railway  over  road,  when  amounts  to,  80,  81. 
liability  of  company  for,  178. 

injunction  when  granted  to  restrain,  177,  178,  413 — 416. 
frightening  horses  on  highway,  company  when  not  indict- 
able for,  184. 


OBSTRUCTION.     See  Officer. 

of  railway,  what  is  within  3  6c  4  Vict.  c.  97,  s.  15.  .344. 

OFFICERS  OF  COMPANY.     See  Agent;    Servants  of 

Company. 
who  proper  to  be  registered  as,  16. 
rights  and  liabilities  of,  247. 

liability  of,  in  case  of  drunkenness,  &c.,  342  et  seq. 
obstruction  of,  subjects  party  to  penalty,  344,  345. 
may  be  made  co-defeudants  in  suit  with  company,  376, 

419. 

OPPOSITION.     See  Parliament. 

OPTION.     See  Purchase;  Tolls. 

ORDER  OF  JUDGE.     See  Judge's  Order. 

for  pleading  several  pleas,  how  to  be  got  rid  of,  356,  357. 

OUSTER, 

by  railway  company,  176. 


Index.  cccxcv 

OWNER, 

who  meant  by,  99. 

OWNERS  AND  PROPRIETORS, 

interpretation  of  terms,  187,  188. 

P. 

PARLIAMENT, 

effect  of  order  of,  touching  amount  of  subscriptions,  38  etseq. 

proper  tribunal  to  j  udge  of  validity  of  subscriptions,  38, 39. 

withdrawing  opposition  in,  how  far  good  consideration  for 
contract,  57 — 60.     See  Agreement. 

member  of,  may  contract  with  projectors  of  railway  for  pro- 
tection of  his  property,  58,  59. 

fraud  on,  what  not,  59,  60. 

PARLIAMENTARY  CONTRACT,  25. 

PARTIES, 

to  suit,  by  shareholder  against  company,  374 — 376. 

to  suit,  by  third  party  against  company,  417. 

party  may  sue  alone  in  regard  to  special  interest,  id.  418. 

when  landlord  may  sue  witiiout  joining  tenant,  418. 

when  others  to  be  made  co-delendants  with  company,  id. 

419. 
parties  refusing  to  act  as  co-plaintiffs,  419. 
officers  of  company  may  be  joined  as  co-defendants  with 

company,  id. 
to  suit  between  shareholders,  423,  424. 
when  shareholder  may  sue  on  behalf  of  company,  424. 

PASSENGERS.     See  Carriers. 

PAYMENT.     See  Purchase  Monev. 

PEER, 

contract  by,  for  withdrawal  of  opposition  in  parliament,  58, 
59. 

PENALTY, 

for  failing  to  register,  17. 

for  falsely  pretending  that  company  is  patronized  by  a  par- 
ticular person,  21. 

may  be  sued  for  in  superior  court,  though  power  given  to 
recover  before  two  justices,  100,  377,  n.  (g). 

stipulations  for,  in  building  contract,  143  et  seq. 

against  parties  employed  on  railways,  343. 

for  trespasses,  &c.  on  railways,  344,  345. 


cccxcvi  Index. 

PERSON, 

held  to  include  railway  company,  378. 

PLEADINGS, 

in  actions  for  calls,  see  Calls. 

in  actions  against  company,  see  Action. 

PLEDGE.     See  Mortgage. 

POLICE  REGULATIONS, 

touching  ortences  on  line  of  railway,  342  et  seq. 

obstruction  of  line,  344. 

obstruction  of  officers,  trespasses,  &c.  id,  345. 

POOR'S  RATE.     See  Rate. 

POSSESSION, 

temporary  taking,  of  land,  what  not,  187. 

POST  OFFICE.     See  Mails. 

POWERS  OF  RAILWAY  COMPANY, 

construction  of,  74,  75,  84. 

of  making  and  maintaining  railway,  75  et  seq. 

excess  of,  remedy  for,  in  equity,  75. 

certificate,  76. 

deviation,  77,  78. 

cuttings  and  embankments  on  deviated  line,  78. 

of  making  branch  railways,  78 — 84. 

of  contracting,  81,  82. 

of  taking  land,  &c.  82  et  seq.  86,  87, 

enabling  powers,  82,  83. 

compulsory  powers,  whether  company  possessed  of,  or  not, 

83,  84. 
of  dealing  with  roads,  87,  88. 
of  constructing  works,  88,  89. 
what  incidental  to  that  of  building  bridge,  89. 
company  to  do  as  little  damage  as  possible  in  carrying  out 

act,  90. 
how  far  qualified  by  provisions  relating  to  minerals,  118 — 
120. 

by  provision  for  preservation  of  communication  across 
railway,  121  et  seq.     See  Road. 

by  prohibition  against  making   railway  station,  &c. 
within  given  distance,  116 — 118. 

by  provisions  as  to  houses,  buildings,  &c.,  see  House. 

by  provisions  as  to  roads,  &:c  ,  see  Roads. 

by  provisions  as  to  aquatic  rights,  see  Water. 
determination  of,  from  failure  of  consideration,  127  et  seq. 
company  incapable  of  completing  line,  128. 
deviation  by  company,  129. 


Index.  cccxcvii 

POWERS  OF  RAILWAY  COMPANY— (conti/iJied.) 

failure  of  consideration  from  extrinsic  circumstances,  130. 

determination  of,  by  completion  of  object,  130 — 132. 

continuing  powers,  131. 

determination  of,  by  lapse  of  time,  132. 

revival  of,  by  way  of  reference  to  old  act,  133. 

when  company    enabled  to  carry  into  effect  proceedings 

under  old  act,  134. 
new  powers  taken  to  apply  to  deviated  line,  134,  135. 
of  alienation,  125. 
of  selling  surplus  lands,  id,  126. 
of  mortgaging,  126. 
of  leasing,  id.  127. 

extension  of,  in  cases  of  accidents,  slips,  &c.  339,  340. 
renewal  of  compulsory  powers,  340,  341. 

PRECEPT.     See  Mandamus. 

to  be  consistent  with  notice,  200,  201. 
to  be  addressed  to  proper  party,  201. 
serable,  to  show  jurisdiction  to  issue,  id, 
to  sheriff,  issued  by  third  party,  210. 
bond  prior  to  issuing,  209,  210. 
mandamus  to  issue  fresh  precept,  211. 
to  execute  precept,  id, 

PROBATE, 

of  shares,  274. 

PROCESS, 

what  good  service  of,  by  company,  363. 

on  company,  383,  384. 

PROMISSORY  NOTES.     See  Bills  of  Exchange. 

PROPRIETORSHIP, 

evidence  of,  see  Calls. 

PROSPECTUS, 

registration  of,  17. 

nature  of,  22. 

consequence  of  false  representation  in,  22,  23. 

does  not  constitute  partnership,  23. 

should  specify  intention  to  reserve  shares,  35,  36. 

effect  of  publication  of,  35. 

PROVISIONAL  AGREEMENT, 

rights  and  liabilities  of  parties  under,  see  DinECTons  ;  Sub- 
scribers. 

PROVISIONAL  COMMITTEE.    See  DiRtcrons. 
registration  of,  15. 
clergy  not  to  be  chosen  members  of,  20. 


cccxcviii  Index. 

PROVISIONAL  COMMITTEE— (fonfijmed.) 

names  of  persons  not  to  be  published  as  members  of,  with- 
out authority,  20,  21. 

PROVISIONAL  REGISTRATION, 
how  made,  14  et  seq. 
powers  of  company  on,  27,  28. 

of  foreign  or  colonial  railway  companies,  when  necessary, 
12,  13. 

PUBLIC, 

term  how  construed,  118. 

PURCHASE, 

of  railways,  option  of,  347,  348. 

PURCHASE-MONEY,  &c.     See  Action-  ;  Mandamus;  Com- 

PENSATioN  ;   Costs. 
time  of  payment,  214. 
mode  of  payment,  215  et  seq. 
company  when  justified  in  paying  into  bank,  id. 
order  for  payment  of,  into  bank,  what  sufticient,  218. 
effect  of  payment  of,  in  vesting  property  in  company,  ici.  219. 
payment  of,  how  lo  be  enforced,  219  et  seq. 
remedy  for,  in  equity,  221,  222. 

lapse  of  time,  where  no  bar  to,  222. 
paid  into  bank,  when  parly  entitled  to  have  paid  out  on  his 

own  affidavit  of  title,  223. 
where  several  parties  interested  in,  id. 
disposition  of,  where  party  under  incapacity,  id.  224. 


R. 

RAILWAY, 

construction  of,  296. 

user  of,  298—300. 

railway  a  highway,  299. 

made  by  owner  of  soil,  character  of,  2. 

covenant  to  use,  not  a  covenant  generally  that  runs  with 

land,  id. 
otherwise  between  lessor  and  lessee,  2,  3. 
made  under  way  leave,  4  et  seq. 

need  not  be  mentioned  in  express  term  of  reservation,  6. 
right  of  making,  claimed  by  way  of  easement,  6,  7. 
or  for  necessary  occupation  of  adjoining  closes,  6. 
rights  and  liabilities  of  owner  of  such  railway,  7,  8. 
remedies  relative  to,  8  et  seq. 

legal  rights  of  owner  of  land,  when  enjoined  or  not,  10. 
making  and  maintaining,  75  et  seq, 
duty  of  so  doing,  148 — 152. 


Index.  cccxcix 

RAILWAY  ACT.     See  Act  of  Parliament, 
regarded  as  a  contract,  62. 

RAILWAY  COMPANY.      See  Action;  Indictment;  In- 
junction; Suit. 

completely  registered,  how  far  within  provisions  of  Joint 
Stock  Companies  Act,  32  et  seq. 

legality  of,  67. 

constitution  of,  generally,  68. 

viewed  as  a  corporation,  68,  69. 

powers  of,  74p.tseq.     See  Powers  of  Railway  Comtany. 

mode  of  action,  70  et  seq. 

rights  of,  136  et  seq.     See  Contract. 

duties  of,  148  et  seq.     See  Duties. 

burthens,  154  et  seq.     See  Rates. 

public  acts  and  liabilities,   160  et  seq.     See   Contract; 
Tort. 

how  far  liable  for  resolutions  of  public  meeting,  70,  71. 

for  acts  of  directors,  71;  72. 

for  acts  of  agents,  &c.  72. 

proper  name  of,  to  be  employed  in  all  proceedings  by  or 
against  compay,  72,  73. 

must  act,  &c.  by  its  common  seal,  73,  74. 

powers  of,  how  determined,  127. 

how  revived,  133.     See  Powers  of  Railway  (,'ompavy. 

occupying  line  of  another  company,  lialile  for  torts  of  ser- 
vants employed  on  such  hne,  184. 

supervision  of,  by  Board  of  Trade,  330  et  seq. 

inspection  of  railway,  330,  331. 

to  give  notices  of  opening,  \c.  331. 

to  make  returns  of  traffic,  accidents,  &c.  to  Board  of  Trade, 
332. 

bye-laws,  333. 

disputes  between  connecting  lines,  id. 

level  crossings,  334,  335,  345. 

branch  cominunicatioiis,  335,  336. 

legal  proceedings  against,  upon  certificate  of  J3oard  of  Tiade, 
337—339. 

extension  of  powers  of  company,  336. 

in  cases  of  accidents,  slips,  &c.  339,  340. 

renewal  of  compulsory  powers  of,  340,  341. 
to  erect  and  maintain  fences,  345,  346. 

to  permit  military,  &c.  to  t)e  conveyed  by  railway,  346. 
to  afford  facilities  for  transmission  of  mails,  id, 

for  erection  of  electrical  telegraphs,  id. 
to  provide  cheap  trains,  347. 

power  of  government  to  purchase  railways  and  revise  lolls, 

id.  348. 
viewed  as  carriers.     See  Carriers. 
when  indictment  lies  against,  421,  422. 


cccc  Index. 

RATE, 

railway  made  under  way-leave,  when  liable  to,  or  not,  7. 

general  principle  of  rating  railways  to  relief  of  poor,  155 
et  seq. 

deductions  to  be  made  in  favour  of  company,  156. 

makes  no  difference  in  principle  whether  company  in  exclu- 
sive enjoyment  of  traffic  on  line  or  not,  156,  157. 

provision  for  keeping  account  of  tolls,  157. 

actual  earnings  in  parish  criterion  of  rateable  value  of  por- 
tion of  railway  in  parish,  158. 

variation  of  principle  of  rating  bv  statute,  159. 

exemption  from  rateability,  159,  160. 

REGISTER  BOOK.    See  Call. 

REGISTRATION.       See  Provisional  Registration   and 
Complete  Registration. 

REGISTRATION  ACT, 

foreign  and  colonial  raihvay  companies  how  far  within, 

12,  13. 
returns  to  be  made  under,  14  et  seq. 

REGISTRY, 

of  proprietors,  249. 

company  liable  to  action  for  refusal  to  register,  249,  250. 

of  probate,  249,  note  (e). 

provisions  touching,  held  not  to  affect  property  in  shares, 

250. 
of  proceedings  of  company,  251. 

REMAINDER.    See  Reversioner. 

REMEDIAL, 

effect  of  later  act,  65,  66. 

REMEDIES.     See  Action  5  Suit. 
for  calls.    See  Calls. 

RENT, 

apportionment  of,  190. 

REPUTED  OWNERSHIP.     See  Bankruptcy  ;  Shares. 

RESERVATION  OF  SHARES,  22,  36. 

RESOLUTION.     See  General  Meeting. 

RETROSPECTIVE, 

new  act,  when  construed  to  be,  134. 


Index.  cccci 

RETURNS, 

to  be  made  by  railway  companies,  332. 

REV^ERSIONER, 

when  barred  as  against  company,  218,  219. 

REVIVAL, 

of  proceedings  under  prior  act  by  later,  134. 
of  powers  of  railway  company,  133 — 135.    See  Powers  op 
Company. 

RIGHTS  OF  RAILWAY  COMPANY, 
on  contracts.     See  Contract. 

RIVER.     See  Water. 

ROAD.     See  Bridge;  Way;  Works. 

power  of  making  branch  railway  over,  what  it  authorizes, 

80,81. 
what  semble  a  determination  of  power,  81. 
power  of  dealing  with,  what  it  authorizes,  87,  88. 
company  to  do  as  little  damage  to,  as  possible,  90,  91. 
restrictions  on  powers  of  company  in  favour  of,  95  et  seq. 
construction  of  restrictions,  9t)  et  seq. 
company  held  entitled  to  lower  road,  98. 
when  not  bound  to  excavate  whole  road,  96,  97. 
entitled  to  place  piers  of  bridge  upon,  98. 
general  provisions  against  injury  to  roads,  99  et  seq. 
when  road  taken  by  company,  100. 
construction  of  term  "injured,"  100,  101. 
penalty  for  not  restoring,  &c.  99. 
criteria  for  determining  wiieliier  new  road,  &c.  as  good  as 

old,  102  et  seq. 

expense,  how  far  may  be  considered  in  determining 
question,  104. 
what  no  excuse  for  not  making  new  road  as  good  as  old,  id. 

105. 
restoring  road,  what  meant  by,  105. 
provisions  as  to  crossing  of  road,  106. 
injunction  to  restrain  trustees  of  road  from  taking  up  slone 

way  laid  down  by  railway  company  dissolved,  id. 
bridge  across  railway  how  to  be  constructed,  106,  107. 
inclination  of  ascents  to  bridges  across  railways,  108. 
bridge  does  not  include  approaches,  107. 
what  a  turnpike  road,  109. 

jurisdiction  of  surveyor,  &c.  of  roads,  to  decide  about  alter- 
ation of,  &c.  by  company,  109 — 1 1 1. 
remedy  for  surveyors,  &c.  if  company  do  not  make  road  to 

their  satisfaction,  1 10. 
makmg  of,  within  prohibited  distance,  what  does  not  amount 

to,  116,  117. 


ccccii  Index. 

ROAD— (continued.) 

communicating  with   or  crossing  railway,   &c.   power  of 

making,  123,  124. 
lowering  of,  and  thereby  impeding  access  to  land,  ground  for 
compensation,  195. 


SALE.     See  Shares  ;  Vendor  and  Purchaser. 

powers  of,  enjoyed  by  railway  companies,  125,  126. 
proviso  as  to  pre-emption  in  case  of  surplus  land,  effect  of, 
126. 

SCOTLAND, 

jurisdiction  of  sheriff  in  case  of  offences  on  railways,  344. 
Scotch  railway  company  suing  for  calls  in  England,  when 
must  give  security  for  costs,  350. 

SCRIP  CERTIFICATES, 
delivery  of,  25. 
remedy  for  refusal  of,  26,  n. 
dealing  in,  how  far  legal,  45  et  seq. 
purchaser  not  bound  to  accept  transfer  of  shares,  &c.  on  act 

passing,  47. 
price  of,  recoverable  on  project  failing,  48. 
sale  of,  not  illegal  under  joint  stock  company's  act,  even 

while  company  only  provisionally  registered,  49,  50. 
in  case  of  transfer  of  scrip,  who  liable  for  calls,  286 — 288,  n. 

SEAL.     See  Common  Seal. 

SECURITY  FOR  COSTS, 

when  Scotch  or  Irish  company  compellable  to  give,  350. 

SERVANTS  OF    COMPANY.     See  Agent;  Officers  of 
Company. 
rights  and  liabilities  of,  246,  247. 
for  what  offences  liable  to  summary  conviction,  342  et  seq. 

SEVERAL  PLEAS, 

in  action  for  calls,  356. 

how  to  move  to  get  rid  of,  when  allowed  by  judge's  order, 
id.  357. 

SHAREHOLDERS.     See  Shares;  Subscribers;  Calls. 
taking  shares  in  trust  for  company  liable  to  calls,  38  et  seq. 

may  vote  at  meetings,  &c  40,  41,  238. 

entitled  to  be  reimbursed  by  company  all  calls,  40. 
how  parties  may  become,  234,  235. 
rights,  duties,  &c.  of,  235. 
liability  of,  236.     See  Calls. 


Index.  cccciii 

SHAREHOLDERS-(coiitiHMerf.) 
character  of,  how  determined,  id, 
remedies  between,  at  law,  423. 

in  equity,  id,  424. 
when  may  sue  on  behalf  of  company,  424. 

SHARES.    See  Fobffiture;  Lease;  BANKRUPTcyj  Judge's 

Order;  Transfer. 
reservation  of,  36. 

profits  of  reservation  of,  to  be  accounted  for  to  company,  id. 
taken  in  trust  for  company,  38 — 41. 
semble,  directors  liable  for  issuing  more  than  proper  number 

of  shares,  53. 
are  personal  property,  254. 
power  of  assigning,  255. 

calls  on,  must  be  paid  before  transfer,  255 — 257. 
title  and  capacity  of  vendor,  256,  257. 
vendor  need  not  be  possessed,  &c.  of  shares  at  time  of  con- 
tract, 256. 
purchaser  may  waive  objection  that  calls  on  not  paid  by 

parol,  257. 
not  goods.  &c.  or  an  interest  in  land,  within  statute  of  frauds, 

257,  258. 
evidence  of  usage,  &c.  admissible  to  explain  contract  for 

sale  of,  258. 
vendor  to  show  good  title,  &c.  259,  260. 
duties  of  purchaser,  259,  260. 

tender  of  certificates  under  contract  for  sale  of.  260,  261. 
time  of  tendering,  &c.,  26i,  262. 
purchaser  of,  to  tender  conveyance,  262. 
damages  for  not  accepting,  what  recoverable  by  vendor,  id. 
263. 
for  not  transferring,  what  recoverable  by  vendee, 
263. 
vendor  not  entitled  to  be  indemnified  against  future  calls,  id. 

264. 
bill  lies  to  enforce  specific  performance  of  contract  for  sale 

of,  264. 
effect  of  variation  in  contract,  id. 
instrument  of  transfer  a  deed,  265. 
when  invalid,  id.  266. 
effect  of  transfer,  266. 
serable,  transferor  euiitied  to  be  indeinnificd  against  future 

calls,  id. 
implied  covenant  for  title,  267. 
lease  of,  id. 

pledges,  equitable  mortgages  of,  id. — 269. 
devolution  of,  in  case  of  bankruptcy,  270. 
reputed  ownership  of,  id.  271. 
transfer  by  marriage,  27 1 ,  272. 


cccciv  Index. 

SHARES— (con«in?jed.) 

judge's  order  for  charging:,  272,  273. 

vest  in  executors,  &c.,  274. 

probate  of,  id. 

liability  of,  to  forfeiture,  id.  'lib. 

assignment  of,  how  affects  liability  for  calls.     See  Calls. 

SHERIFF, 

a  shareholder,  cannot  preside  at  inquisition,  203. 

qusre,  whether  rule  applies  where  two  persons  constitute 

the  sheriff  and  only  one  a  shareholder,  id. 
when  cannot  depute  his  authority,  202. 

SPARKS.     See  Fire. 

SPECIAL  CONSTABLES,  297. 

SPECIAL  JURY,  116. 

SPECIFIC  PERFORMANCE, 
of  covenant,  when  decreed,  123. 
of  contract  for  purchase  of  land,  when  company  may  insist 

on,  138.     See  Vendor  and  Purchaser. 
of  contract,  when  decreed  against  railway  company,  171, 

172. 
of  contract  for  sale  of  shares,  264. 
variations  of  contract  proposed  and  not  agreed  on,  no  bar  to 

decree  for,  id. 
of  contract,  when  decreed  in  favour  of  company,  366. 
when  decreed  against  company,  417. 

SPIRITUAL  PERSONS.     See  Clergymen. 

STANDING  ORDERS.     See  Parliament. 

STATION, 

what  not  a  station  within  prohibition  against  making  stations, 

&c.  within  given  distance  of  house,  5ic.,  117. 
what  held  to  constitute  a  station,  id. 

STOPPAGE  IN  TRANSITU,  316,  317. 

STREAM.    See  Water. 

STREET.     See  Road. 

public,  when  company  may  arch  over,  88. 

SUBSCRIBERS.     See  Letter  of  Allotment. 

for  additional   shares  for  benefit  of  company,   rights  and 

liabilities  of,  38  et  seq. 
to  be  viewed  as  partners,  43. 
when  one  may  sue  another,  id.  44. 


Index. 


ccccv 


SUBSCRIBERS— (coiitiHued.) 
rights  of,  against  directors,  45. 
liabilities  of,  to  do,  44. 
interest  of,  in  undertaking,  45  et  seq. 
dealing  by,  in  scrip  certificates,  whether  valid,  id. 
purchaser  of  scrip  not  bound  to  accept  legal  transfer  of  shares, 

or  indemnify  vendor,  47. 
purchase  money  recoverable  where  project  fails,  48. 
not  in  general  liable  on  contracts  for  benefit  of  undertakincr, 

56,  57. 
who  meant  by,  280. 
declaration  against  parly  as,  need  not  be  on  subscription 

deed,  351. 

SUBSCRIBERS'  AGREEMENT,  25. 

SUBSCRIPTION, 

for  shares,  what  sufficient,  38  et  seq. 

SUBSCRIPTION  DEED, 

when  not  necessary  to  declare  on,  351. 

SUIT  IN  EQUITY.     See  Parties;  Injunction. 

by  company,   when   necessary  to  procure  conveyance  of 

land,  213,  214. 
against  directors,  362. 
by  company  against  third  party,  366,  367. 
by  shareholder  against  company,  371  et  seq. 
frame  of  bill,  376. 

against  company  what  third  party  may  have,  404  et  seq. 
where  company  go  beyond  their  powers,  405,  406. 
where  company  seek  to  violate  arrangements  on  faith  of 

which  act  obtained,  412,  413. 
for  relief  against  nuisance.  See.  by  company,  413  et  se(|. 
issue,  when  directed  by  court  of,  416. 
for  relief  on  contract  against  company,  id.  417. 
between  individual  shareholders,  423. 
parties  to,  id.  424. 
on  behalf  of  company,  when  individual  shareholders  may 

bring,  424. 
frame  of  bill  in  suit  against  company,  419,  420. 
defence  to  bill,  420. 

SURPLUS  LAND, 

power  of  company  to  sell,  125,  126. 
contract  for  sale  of,  139. 


T. 


TELEGRAPH, 

lines  of  electrical,  346. 


ccccvi  Index. 

TENANCY, 

at  will,  &c.  power  of  company  to  determine  by  noticC)  188, 

189.     See  Compensation. 
provision  for  con)pensation  in  regard  of,  189. 
compensation  when  not  claimable,  id, 
tenant  when  entitled  to  apportionment  of  rent,  190. 

TENDER  OF  AMENDS,  383. 

TIME,  LAPSE  OF, 

effect  of,  in  delermioing  powers  of  company,  132. 

TITHE  RENT  CHARGE,  159. 

TITLE.     See  Costs, 

failure  to  make  out  to  company,  effect  of,  21?.. 

what,  semble,  not  a  parlianientary  confirmation  of,  id.  220. 

plaintiff  to  aver  that  he  has  made  out,  &c.  in  action  for 

purchase  money,  220. 
vendor  to  show  good  title  to  shares,  260  et  seq. 

TOLLS, 

right  to,  generally,  300  et  seq. 

construction  of  clauses  giving   39,  300  et  seq. 

right  to,  how  defeated,  302,  303. 

option  of  revising,  reserved  to  government,  347,  348. 

TORT.     See  Compensation. 

railway  company  how  far  capable  of  committing,  174. 
when  may  be  regarded  as  public  act  of  company,  id. 
appointment  of  agent  must  in  general  be  under  common 

seal,  175. 
when  appointment  of  agent  under  common  seal  need  not  be 

shown,  id. 
when  presumed,  id. 

act  of  agent  must  be  within  scope  of  his  authority,  id. 
company  liable  for  conversion,  &c.,  176. 
for  waste,  ouster,  ikc.  id.  177. 

injunction  when  not  granted  to  restrain  party  from  pulling 
up  rails  of  company,  177. 

when  granted  to  restrain  nuisance  by  company,   id. 
178. 
railway  company  liable  to  indictment  for  nonfeasance,  178. 
liable  for  neglecting  to  erect,  &c.  proper 
gates,  179. 
railway  company  liable  for  doing  what  act  does  not  autho- 
rize, id.  180. 
distinction  between  foreseen  and  unforeseen  mischief,  180. 


Index.  ccccvii 

TORT — (^contimied.') 

railway  company  liable  for  doing  in  improper  manner  what 
act  authorizes,  180. 
liable  for  making  excavations  carelessly,  &c.,  181. 
for  making;  works  over  public  thoioughfaie  to  public 

inconvenience,  id, 
not  liable  when  works  done  with  due  regard  to  interests 

both  of  public  and  the  company,  id.  182. 
liable  for  fiie  arising  from  careless  use  of  engine,  182, 

183. 
not  liable  for  accident  where  they  only  do  what  act 

authorizes,  and  that  in  proper  manner,  183,  184. 
when  not  liable  for  nuisance  to  travellers  on  old  high- 
way, from  use  of  locomotive  engines  on  railway, 
184. 
company  in   actual  occupation  of  line  liable  for  act  of 
servants  in  management  of  traffic,  id. 

TRANSFER.    See  Shares. 

of  shares,  what  sufficient  to  constitute  a  shareholder,  234. 
power  of,  255. 

contract  for  sale  of  shares,  257  et  seq. 
instrument  of,  a  deed,  264,  265. 
when  invalid,  265,  266. 
want  of  memorial  does  not  invalidate,  266. 
though  till  memorial  entered,  transferor  liable  to  calls,  id. 
semlde,  transferor  entitled  to  be  indemnified  against  calls,  id. 
implied  covenant  for  title,  267. 
transferee  liable  for  calls,  281. 

effect  of,  in  discharging  transferor  from  liability  for  calls, 
283. 

TRANSFER  BOOK, 

evidence  per  se  of  dale  of  entry  of  transfer,  360. 

TRESPASS, 

on  railway,  what  wilful,  within  3  &  4  Vict.  c.  97,  s.  16.. 

344,  345. 
company  may  have  action  for,  363. 
under  colour  of  title,  injunction  to  restrain,  368,  416. 

TROVER,  ACTION  OF, 

company  liable  to,  for  conversion,  176. 
against  company,  plea  of  lien,  &c.  in,  387. 
de  injuria,  when  improper  replication  in,  id. 

TRUST, 

shares  held  on  secret,  in  reputed  owneraliip  of  trustee,  270, 

271. 


ccccviii  Index. 

TRUSTEE, 

when  shareholder  to  be  deemed  trustee  for  compaoy,  40. 

rights  of,  in  such  case,  id. 

within  Stat.  1  Will.  4,  c.  60,  infant  heir,  &c.  when,  214. 

TURNPIKE  ROAD.    See  Road. 
what  is,  109. 

U. 

UNDERTAKING.     See  Injunction. 

USER, 

of  railway  generally,  298 — 300. 
railway  a  highway,  299. 


V. 

VENDEE, 

of  shares,  when  may  have  action  against  vendor  for  purchase 
money,  48,  49,  423. 

VENDOR  AND  PURCHASER.  See  Sale;  Shares; 
Purchase  Money;   Suit;  Specific  Performance. 

relation  of,  established  between  company  and  land  owner, 
by  notice  to  take  land  for  purposes  of  railway,  199. 

when  company  may  insist  on  specific  performance  of  con- 
tract for  purchase  of  land,  138. 

adoption  of  contract  by  company,  id. 

sale  of  surplus  land,  139. 

efTect  of  company  taking  possession  without  leave  of  vendor, 
&c.  214,  215. 

when  specific  performance  of  contract  for  purchase  of  land, 
semble,  refused  against  railway  company,  173. 

VERDICT.     See  Inquisition. 

effect  of,  where  made  final  and  conclusive,  211. 


W. 
WAITING   PLACE.     See  Station. 
W^ARRANT.     See  Precept. 

WATER, 

when   company  may  build    temporary  bridge  over  canal, 

88,  92—94. 
company  cannot  come  down  on  stream  and  destroy  parly's 

interest,  90. 


Indej:.  ccccix 

y^ATER- (continued.) 

company  restrained  from  constructing  arch  over  mill  stream 

of  less  than  given  dimensions,  90. 
restrictions  on   powers  of  company,  in  favour  of  aquatic 

rights,  92  et  seq. 
who  may  take  advantage  of,  94,  95. 
raising  level  of  brook,  and  causing  inundation,  good  ground 

for  compensation,  195. 

WAY.     See  Indictment;  Road;  Tort. 
right  of,  across  railway,  121,  122. 
how  lost,  122. 
mandamus  to  restore,  389. 

WAY  LEAVE, 

extent  of,  3  et  seq. 

unlimited  right  of,  when  not  inferred,  6. 

railway  need  not  be  expressly  mentioned  in,  id. 

when  grantee  of,  liable  to  poor  rate  or  not,  7. 

grantee  of,  when  liable  to  action,  8. 

when  liable  to  injunction  in  equity,  8  et  seq. 

right  of  owner  of  soil  to  injunction,  may  be  lost  by  laches,  9. 

injunction  not  granted  after  work  complete,  id. 

legal  right  of  owner  of  soil,  when  enjoined  in  equity,  10. 

tenant's  damages  reserved  on  grant  of,  to  whom  payable,  8. 

WHARF, 

when  party  entitled  to  have  new  vviiarf  made  by  company, 
100,  101. 

WIDTH  OF  ROAD.    See  Road. 

WITHDRAWING   OF  OPPOSITION.     See  Agrekment  ; 
Parliament. 

WORK  AND  LABOUR, 

in  obtaining  act,  when  party  may  recover  for,  370. 
for  railway  company  when  provisionally  organized,  54. 

WORKS, 

extent  of  power  of  constructing,  88. 

company,  when  held  entitled  to  arch  over  public  street,  id. 

to  make  temporary  bridge  over  canal,  id. 
wiien  company  may  place  scaffolding  on  land  of  another,  89. 
time  of  completion,  132. 
contract  for  performance  of,  139  et  seq. 
test  ot  dependent  and  independent  covenants,  140. 
stipulation  for  company's  engineer  being  judge  of  (juality, 
quantity,  &c.  of  works,  142,  143. 
s  s 


ccccx  Index. 

WORKS— (fo««inucrf.) 

stipulations  for  forfeiture,  143 — 148. 

how  far  a  protection  to  company,  in  case  of  bankruptcy, 
&c.  of  coDtractor,  144 — 146. 
materials.  Sac,  when  not  in  reputed  ownership   of  con- 
tractor, 146. 
extent  of  lien,  &c.,  given  by  above  stipulations,  146 — 148. 

WRIT.     See  Process. 

Y. 
YARD, 

held  to  be  included  in  term  "  house,"  in  certificate,  76. 
term  when  to  be  construed  with  reference  to  a  building,  1 12. 
when  held  not  to  be  sutficiently  connected  with  a  building 
to  come  within  protection  of  act,  113. 

YEARLY  TENANCY.     See  Tenancy. 


LONDON: 

C.  RDWORTH  AND  £OSS,    PRIKTERS,   BELL  YAUD, 
TEMPLE  BAR. 


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